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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Marine Safety (Domestic Commercial Vessel) National Law
(Application) Bill 2013
A BILL FOR
An Act to provide for a national legislative scheme regulating domestic
commercial vessels; to make provision for local matters associated with
commercial vessels; to make related amendments to other Acts; and for other
purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Purposes of
Act
4Interpretation
Part 2—Applied
provisions
5Application of Commonwealth
laws as laws of this State
6Interpretation of Commonwealth domestic
commercial vessel national law
Part 3—Functions and powers under
applied provisions
7Functions and powers of National Regulator and
other authorities and officers
8Delegations by the National
Regulator
Part 4—Offences
9Object of
Part
10Application of
Commonwealth criminal laws to offences against applied provisions
11Functions
and powers conferred on Commonwealth officers and authorities relating to
offences
12No double jeopardy for offences against
applied provisions
Part 5—Administrative
laws
13Application of
Commonwealth administrative laws to applied provisions
14Functions and powers
conferred on Commonwealth officers and authorities
Part 6—Fees and
fines
15Fees payable in
relation to officers or employees of State acting as delegates
16Infringement
notice fines
17Fines, fees etc not otherwise payable to
State
Part 7—Miscellaneous
18Things done
for multiple purposes
19Reference in Commonwealth law to a provision
of another law
20Regulations
Schedule 1—Marine Safety (Domestic
Commercial Vessel) National Law
Part 1—Preliminary
1Short
title
2Commencement
3Objects of Law
4Law binds the
Crown
5Extended geographical
jurisdiction—category A
6Definitions
7Definition of domestic
commercial vessel
8Definition of
vessel
Part 2—The National
Marine Safety Regulator
9The National Marine Safety
Regulator
10Functions of the National Regulator
11Delegation
Part 3—General
safety duties relating to domestic commercial vessels
Division 1—Duties of
owners
12Duty of owners of domestic
commercial vessels to ensure safety of vessels, marine safety equipment and
operations
section 12
Division 2—Duties of
designers, builders, suppliers etc
14Duty
relating to design, manufacture etc of domestic commercial vessels
section 14
Division 3—Duties of
masters
16Duty of masters of domestic
commercial vessels to ensure safety of vessels, marine safety equipment and
operations
17Duty of masters of domestic
commercial vessels to take reasonable care for safety of persons
section 16 or
17
Division 4—Duties of
crew
19Duty of crew of domestic
commercial vessels to take reasonable care for safety of persons, etc
section 19
Division 5—Duties of
passengers
21Duty of passengers on
domestic commercial vessels to take reasonable care for safety of persons,
etc
section 21
Division 6—Other
duties
23Duty of persons relating to
safety of persons on domestic commercial vessels, etc
section 23
25Duty of persons in relation
to domestic commercial vessels
section 25
Division 7—General
provisions
27Determining what is reasonably practicable to
ensure safety
28Functions and powers of marine safety
inspectors not affected
29Requirements imposed by this Part do not limit
one another
Part 4—Vessel
identifiers and certificates for vessels and seafarers
Division 1—Unique
identifiers
30Person may apply for unique
identifier
31Issue of unique
identifier
32Offence—operating etc a vessel without a
unique identifier (owner)
33Offence—operating etc a vessel without a
unique identifier (master)
34Offence—display etc of a unique
identifier (owner)
35Offence—display etc of unique identifier
(master)
36Offence—removal or alteration of a
unique identifier
Division 2—Certificates of
survey
37Person may apply for a
certificate of survey
38Issue of certificate of
survey
39Person may apply for
variation, suspension or revocation of a certificate of survey
40Variation of certificate of
survey
41Suspension of certificate
of survey
42Revocation of certificate
of survey
43Offence—operating etc a vessel without
a certificate of survey (owner)
44Offence—operating etc a vessel without
a certificate of survey (master)
45Offence—breach of a condition of a
certificate of survey (owner)
46Offence—breach of a condition of a
certificate of survey (master)
Division 3—Certificates of
operation
47Person may apply for a
certificate of operation
48Issue of certificate of
operation
49Person may apply for
variation, suspension or revocation of a certificate of operation
50Variation of certificate of
operation
51Suspension of certificate
of operation
52Revocation of certificate
of operation
53Offence—operating etc a vessel without
a certificate of operation (owner)
54Offence—operating etc a vessel without
a certificate of operation (master)
55Offence—breach of a condition of a
certificate of operation (owner)
56Offence—breach of a condition of a
certificate of operation (master)
57Obligation to notify National Regulator of
certain matters
Division 4—Certificates of
competency
58Regulations may provide for certificate of
competency
59Individual may apply for a
certificate of competency
60Issue of certificate of
competency
61Person may apply for
variation, suspension or revocation of a certificate of competency
62Variation of certificate of
competency
63Suspension of certificate
of competency
64Revocation of certificate
of competency
65Offence—owner causing etc performance
of duties or functions without a certificate of competency
66Offence—person performing duties or
functions without a certificate of competency
67Offence—master causing
etc performance of duties or functions without a certificate of
competency
68Offence—owner causing etc breach of a
condition of a certificate of competency
69Offence—breach of a condition of a
certificate of competency by any person
70Offence—master causing etc breach
of a condition of a certificate of competency
Division 5—General
matters relating to unique identifiers and certificates
71National
Regulator may require information
72National Regulator must give a show cause
notice before varying, suspending or revoking a certificate
73National Regulator may
recognise certificates
74Fit and proper person
75Regulations may provide for
matters relating to certificates and unique identifiers
76Regulations may provide
for matters relating to applications for certificates and unique
identifiers
77Regulations may make provision in relation to
the issue, variation and revocation of certificates and unique
identifiers
78Regulations may make provision in relation to
renewal and transfer of certificates
79Regulations may require display of
certificates
80Regulations may provide for
certificate of operation for persons
81Effect of certificate of operation for
persons
82Defeasibility
83Certificates etc to be made
available
84National Regulator may require delivery of
revoked certificates
Part 5—Assistance
and reporting requirements
85Obligation to render assistance
86Obligation
to render assistance if requisitioned
87Obligation to record requests for
assistance
88Reporting of marine incidents to National
Regulator (owner)
89Reporting of marine incidents to National
Regulator (master)
90Evidence of marine incidents
Part 6—Powers of
marine safety inspectors
Division 1—Appointment of marine safety
inspectors etc
91Appointment of marine
safety inspectors
92Identity cards
93False representation about
being a marine safety inspector
94Obstructing or hindering a marine safety
inspector
Division 2—Entry,
search, seizure, detention and information gathering powers
Subdivision 1—Powers to facilitate
boarding with or without consent or warrant
95Requirement to facilitate
boarding
96Entering certain premises
for access to domestic commercial vessel
Subdivision 2—Powers relating to
vessels, exercisable without consent or warrant
97Boarding a
vessel
98Requiring master of a
vessel to answer questions about the nature of the vessel
99Monitoring domestic
commercial vessels
100Sampling, securing or
seizing things found using vessel monitoring powers
101Detaining
domestic commercial vessels
102Offence—not
complying with requirement made under section 99
Subdivision 3—Powers relating to
any premises, exercisable with consent or warrant
103Entering
premises with consent or under warrant
104Monitoring
premises
105Enforcement
powers
106Requiring persons on
premises entered under warrant to answer questions and produce
documents
107Using force in executing a
warrant
108Relationship with
Subdivision B
Division 3—Other
powers
109Giving
directions
110Issuing improvement
notices
111Issuing prohibition
notices
112Copies of notices to be
displayed and distributed
113Notices not to be tampered with or
removed
Division 4—Persons
assisting marine safety inspectors
114Persons
assisting marine safety inspectors
Division 5—Obligations
and incidental powers of marine safety inspectors
115Consent
116Announcement before entry
under warrant
117Marine safety inspector to
be in possession of warrant
118Details of warrant etc to
be given to occupier
119Completing execution of
warrant after temporary cessation
120Completing execution of
warrant stopped by court order
121Expert assistance to
operate electronic equipment
122Compensation for damage to electronic
equipment
123Extending period for which
something is secured
124Offence—interfering with securing of
thing
Division 6—Occupier’s
rights and responsibilities
125Occupier entitled to observe execution of
warrant
126Occupier to provide marine safety inspector
with facilities and assistance
Division 7—General
provisions relating to seizure and detention
127Copies of seized things to
be provided
128Receipts for seized things
129Return of
seized things
130Magistrate may permit a
thing to be retained
131Costs of detention
132Disposal of seized things
and detained vessels
133Compensation for
acquisition of property
Division 8—Warrants
134Monitoring
warrants
135Enforcement
warrants
136Enforcement warrants by
telephone, fax etc
137Offence relating to warrants by telephone,
fax etc
Part 7—Infringement
notices
138Infringement
notices
Division 1—Review
of decisions
139Reviewable
decisions
140Internal review of
reviewable decisions
141Applications for AAT review
142Review of
decisions made under the regulations
Division 2—Exemptions
143Power of
exemption
144Offence of breaching a condition of
exemption (owner)
145Offence of breaching a condition of
exemption (master)
146Offence of breaching a condition of
exemption (all persons)
Division 3—Application of National Law to
certain bodies
147Treatment of partnerships
148Treatment
of unincorporated associations
149Treatment of trusts with multiple
trustees
Division 4—Fees
150Charging of fees by the
National Regulator
151Charging of fees by accredited
persons
Division 5—Disclosure of
information
152Disclosure of information by certain persons
to the National Regulator
Division 6—Immunity
from suit
153Immunity from suit
Division 7—Matters
relating to evidence and proceedings, etc
154National
Regulator may require certain information
155Offence
not to give information
156Evidentiary certificates
157Burden of
proving certain matters lies on defendant
Division 8—Adverse
publicity orders
158Adverse publicity orders
Division 9—Regulations and other
legislative instruments
159Regulations
160Regulations may prescribe
matters relating to accreditation and approval
161Offence of contravening a
condition of accreditation
162Regulations may prescribe
penalties etc
163Legislative instruments
other than regulations
164Incorporation of material, etc
165Regulations may deal with transitional
matters
Schedule 2—Related amendments and
transitional provisions
Part 1—Preliminary
1Amendment
provisions
2Regulations may make further transitional or
savings provisions
Part 2—Amendment of
Harbors and Navigation Act 1993
3Amendment of Act
4Amendment of
section 4—Interpretation
5Insertion of section
6A
6AApplication of Act to
certain vessels
6Repeal of section 7
7Amendment of heading to
Part 2 Division 2
8Amendment of section 14—Powers of
authorised person
9Amendment of section 28C—General
responsibility of port operator
10Amendment of section 35—Compulsory
pilotage
11Repeal of Part 6
12Substitution of heading to
Part 7
13Amendment of section 46—Vessels to
which this Part applies
14Amendment of section 47—Requirement for
boat operator's licence, exemption or permit
15Insertion of section
47A
47ARequirements for
operators of hire and drive vessels
16Amendment of section
48—Issue of boat operator's licence or exemption
17Amendment of section
49—Cancellation of boat operator's licence by court
18Amendment
of section 50—Cancellation of boat operator's licence by CE
19Amendment
of heading to Part 9
20Amendment of section 54—Application of
Division
21Amendment of section
55—Registration
22Repeal of Part 9 Divisions 2 and 3
23Amendment
of section 64A—Application of Division
24Amendment of section
65—General requirements
25Amendment of section 65A—Requirement to
have emergency position indicating radio beacon
26Amendment of section
66—Power to prohibit use etc of unsafe vessel
27Amendment to section
67—Minister's power to act in an emergency
28Substitution of heading to
Part 10 Division 2
29Amendment of section 68—CE may require
survey
30Amendment of section 75—Casualties to
be reported
31Amendment of section 78—Enquiries into
casualties
32Amendment of section 79—Enquiries into
misconduct or incompetence
33Amendment of section 80—Review of
administrative decisions
34Amendment of heading to Part 13
35Amendment
of section 81—Application of Navigation Act 2012
36Amendment of section
82—Agreement between the Commonwealth and the State
37Amendment
of section 83—Exemptions
38Amendment of section 87—Evidentiary
provision
39Amendment of section 90—Fees and
charges to be paid into separate fund
40Insertion of section
90AA
90AAFacilities
levy
41Amendment of section 90A—Facilities
Fund
42Substitution of section
91
91Regulations
Part 3—Transitional
provision
43Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Marine Safety (Domestic Commercial Vessel)
National Law (Application) Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
(1) The purpose of this Act is to adopt in this State a national approach
to the regulation of marine safety in relation to domestic commercial
vessels.
(2) Accordingly, this Act—
(a) applies the Commonwealth domestic commercial vessel national law as a
law of this State; and
(b) makes provision to enable the Commonwealth domestic commercial vessel
national law and the applied law of this State to be administered on a uniform
basis by the Commonwealth (and by State officials as delegates of the
Commonwealth) as if they constituted a single law of the Commonwealth.
(1) In this Act—
applied provisions means the Commonwealth domestic commercial
vessel national law that applies as a law of this State because of
section 5;
Commonwealth administrative laws means the following
Commonwealth Acts, regulations or other legislative instruments:
(a) the Administrative Appeals Tribunal Act 1975 (excluding
Part IVA);
(b) the Freedom of Information Act 1982;
(c) the Ombudsman Act 1976;
(d) the Privacy Act 1988;
(e) the regulations and other legislative instruments in force under any
of those Acts;
Commonwealth domestic commercial vessel national law means
the provisions of the following Acts, regulations or other legislative
instruments:
(a) the Marine Safety (Domestic Commercial Vessel) National Law of
the Commonwealth (being the provisions applying as a law of the Commonwealth
because of section 4 of the Marine Safety (Domestic Commercial Vessel)
National Law Act 2012 of the Commonwealth);
(b) the regulations and other legislative instruments in force under that
law;
(c) any other provision of a Commonwealth Act (or of a regulation or other
legislative instrument in force under a Commonwealth Act) that is of a savings
or transitional nature consequent on the enactment or amendment of that
law;
function includes a duty.
(2) Terms used in this Act and also in the Commonwealth domestic
commercial vessel national law have the same meanings in this Act as they have
in that law.
(3) For the purposes of this Act, a reference to a Commonwealth Act
includes a reference to—
(a) that Commonwealth Act, as amended and in force for the time being;
and
(b) an Act enacted in substitution for that Act and, if it is amended, as
amended and in force for the time being.
5—Application
of Commonwealth laws as laws of this State
(1) The Commonwealth domestic commercial vessel national law, as in force
from time to time, applies as a law of this State.
(2) The
Commonwealth domestic commercial vessel national law so applies as if it
extended to matters in relation to which this State may make
laws—
(a) whether or not the Commonwealth may make laws in relation to those
matters; and
(b) even though the Commonwealth domestic commercial vessel national law
provides that it applies only to specified matters with respect to which the
Commonwealth may make laws.
(3)
Subsection (2)
does not operate to exclude a law of this State relating to marine safety that
would not otherwise be excluded by the Commonwealth domestic commercial vessel
national law.
(4) The regulations may provide that the Commonwealth domestic commercial
vessel national law applies under this section as if an amendment to that
law—
(a) made by a law of the Commonwealth; and
(b) specified in the regulations,
had not taken effect.
6—Interpretation
of Commonwealth domestic commercial vessel national law
(1) The Acts Interpretation Act 1901 of the Commonwealth
applies as a law of this State in relation to the interpretation of the applied
provisions, and so applies as if the applied provisions were a Commonwealth Act
or were regulations or other legislative instruments under a Commonwealth Act
(as the case requires).
(2) The Acts
Interpretation Act 1915 does not apply to the applied
provisions.
Part 3—Functions
and powers under applied provisions
7—Functions
and powers of National Regulator and other authorities and
officers
The National Regulator and other authorities and officers referred to in
the applied provisions have the same functions and powers under the applied
provisions as they have under the Commonwealth domestic commercial vessel
national law, as that law applies to the Commonwealth.
8—Delegations
by the National Regulator
Any delegation by the National Regulator under the Commonwealth domestic
commercial vessel national law, as that law applies to the Commonwealth, is
taken to extend to, and have effect for the purposes of, the corresponding
provision of the applied provisions.
(1) The object of
this Part is to further the purposes of this Act by providing for an offence
against the applied provisions to be treated as if it were an offence against a
law of the Commonwealth.
(2) The purposes for which an offence is to be treated as mentioned in
subsection (1)
include, for example (but are not limited to)—
(a) the
investigation and prosecution of offences; and
(b) the arrest,
custody, bail, trial and conviction of offenders or persons charged with
offences; and
(c) proceedings
relating to a matter referred to in
paragraph (a) or
(b); and
(d) appeals and reviews relating to criminal proceedings and to
proceedings of the kind referred to in
paragraph (c);
and
(e) the sentencing, punishment and release of persons convicted of
offences; and
(f) fines, penalties and forfeitures; and
(g) infringement notices in connection with offences; and
(h) liability to make reparation in connection with offences;
and
(i) proceeds of crime; and
(j) spent convictions.
(3) For the purposes of this Part, a reference to offences includes a
reference to contraventions for which a civil penalty may be imposed.
10—Application
of Commonwealth criminal laws to offences against applied
provisions
(1) The relevant Commonwealth laws apply as laws of this State in relation
to an offence against the applied provisions as if those provisions were a law
of the Commonwealth and not a law of this State.
(2) For the
purposes of a law of this State, an offence against the applied
provisions—
(a) is taken to be an offence against the laws of the Commonwealth, in the
same way as if those provisions were a law of the Commonwealth; and
(b) is taken not to be an offence against the laws of this
State.
(3)
Subsection (2)
has effect for the purposes of a law of this State except as provided by the
regulations.
11—Functions
and powers conferred on Commonwealth officers and authorities relating to
offences
(1) A Commonwealth law applying because of
section 10
that confers on a Commonwealth officer or authority a function or power in
relation to an offence against the Commonwealth domestic commercial vessel
national law also confers on the officer or authority the same function or power
in relation to an offence against the corresponding provision of the applied
provisions.
(2) In performing a function or exercising a power conferred by this
section, the Commonwealth officer or authority must act as nearly as practicable
as the officer or authority would act in performing or exercising the same
function or power in relation to an offence against the corresponding provision
of the Commonwealth domestic commercial vessel national law.
12—No
double jeopardy for offences against applied provisions
If—
(a) an act or omission is an offence against both the applied provisions
and an offence against the Commonwealth domestic commercial vessel national law;
and
(b) the offender has been punished for that offence under the Commonwealth
domestic commercial vessel national law,
the offender is not liable to be punished for the offence under the applied
provisions.
13—Application
of Commonwealth administrative laws to applied provisions
(1) The Commonwealth administrative laws apply as laws of this State to
any matter arising in relation to the applied provisions as if those provisions
were a law of the Commonwealth and not a law of this State.
(2) For the
purposes of a law of this State, a matter arising in relation to the applied
provisions—
(a) is taken to be a matter arising in relation to laws of the
Commonwealth in the same way as if those provisions were a law of the
Commonwealth; and
(b) is taken not to be a matter arising in relation to laws of this
State.
(3)
Subsection (2)
has effect for the purposes of a law of this State except as provided by the
regulations.
(4) Any provision of a Commonwealth administrative law applying because of
this section that purports to confer jurisdiction on a federal court is taken
not to have that effect.
(5) For the purposes of this section, a reference in a provision of the
Administrative Appeals Tribunal Act 1975 of the Commonwealth (as
that provision applies as a law of this jurisdiction) to the whole or any part
of Part IVA of that Act is taken to be a reference to the whole or any part
of that Part as it has effect as a law of the Commonwealth.
14—Functions
and powers conferred on Commonwealth officers and
authorities
(1) A Commonwealth administrative law applying because of
section 13 that
confers on a Commonwealth officer or authority a function or power also confers
on the officer or authority the same function or power in relation to a matter
arising in relation to the applied provisions.
(2) In performing a function or exercising a power conferred by this
section, the Commonwealth officer or authority must act as nearly as practicable
as the officer or authority would act in performing or exercising the same
function or power under the Commonwealth administrative law.
15—Fees
payable in relation to officers or employees of State acting as delegates
The Governor may make regulations for or with respect to fees payable to
this State in relation to anything done under the Commonwealth domestic
commercial vessel national law (as that law applies as a law of the
Commonwealth), or under the applied provisions, by a delegate of the National
Regulator, or an accredited person, who is an officer or employee of this State
or an agency of this State.
Any amount paid to this State by the National Regulator under
section 10 of the Marine Safety (Domestic Commercial Vessel) National
Law Act 2012 of the Commonwealth in relation to an infringement notice
is (subject to any refund payment under section 10(2) of that Act) payable
into the Consolidated Account.
17—Fines,
fees etc not otherwise payable to State
(1) All fees,
penalties, fines and other money that, under the applied provisions, are
authorised or directed to be payable by or imposed on any person (but not
including an amount ordered to be refunded to another person) must be paid to
the Commonwealth.
(2)
Subsection (1)
does not apply to any fees referred to in
section 15.
18—Things
done for multiple purposes
The validity of a licence, certificate or other thing issued, given or done
for the purposes of the applied provisions is not affected only because it was
issued, given or done also for the purposes of the Commonwealth domestic
commercial vessel national law.
19—Reference
in Commonwealth law to a provision of another law
For the purposes of
section 10 and
section 13, a
reference in a Commonwealth law to a provision of that or another Commonwealth
law is taken to be a reference to that provision as applying because of those
sections.
(1) The Governor may make regulations, not inconsistent with this Act or
the applied provisions, for or with respect to any matter that by this Act is
required or permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act or the applied
provisions.
(2) The regulations may provide that a matter or thing in respect of which
regulations may be made is to be determined according to the discretion of the
Minister or other specified person or body.
Schedule 1—Marine
Safety (Domestic Commercial Vessel) National Law
Part 1—Preliminary
This Law may be cited as the Marine Safety (Domestic Commercial Vessel)
National Law.
This Law commences as a law of this jurisdiction as provided by the Act of
this jurisdiction that applies this Law as a law of this jurisdiction.
The objects of this Law are as follows:
(a) to form a part of a cooperative scheme between the Commonwealth, the
States and the Northern Territory that provides a single national framework for
ensuring the safe operation, design, construction and equipping of domestic
commercial vessels;
(b) to implement Australia’s international obligations in relation
to the safety of domestic commercial vessels;
(c) to facilitate the development of a safety culture that will prevent,
or mitigate the effects of, marine incidents;
(d) to provide a framework for the development and application of
consistent national standards relating to the operation, design, construction
and equipping of domestic commercial vessels;
(e) to enhance the efficient and orderly operation of domestic commercial
vessels;
(f) to provide an effective enforcement framework.
(1) This Law binds the Crown in each of its capacities.
(2) This Law does not make the Crown liable to a pecuniary penalty or to
be prosecuted for an offence.
5—Extended
geographical jurisdiction—category A
Section 15.1 of the Criminal Code (extended geographical
jurisdiction—category A) applies to an offence against this Law.
In this Law—
accredited person means a person who is accredited in
accordance with regulations made for the purposes of
section 160;
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution of the Commonwealth;
agency—
(a) of the Commonwealth, includes the following:
(i) an Agency within the meaning of the Financial Management and
Accountability Act 1997 of the Commonwealth;
(ii) a body corporate established for a public purpose by or under a law
of the Commonwealth; and
(b) of a State or a Territory, includes the following:
(i) a Department of State (however described) of the State or
Territory;
(ii) a body corporate established for a public purpose by or under a law
of the State or Territory.
approved training organisation means a training organisation
that is approved in accordance with regulations made for the purposes of
section 160;
certificate means any of the following:
(a) a certificate of operation;
(b) a certificate of survey;
(c) a certificate of competency;
certificate of competency means a certificate issued under
section 60;
certificate of operation means a certificate issued under
section 48;
certificate of survey means a certificate issued under
section 38;
close quarters situation means a situation in which vessels
pass each other, or a vessel passes another vessel, a person or an object, in
such proximity that a reasonable person would conclude that in all the
circumstances there was a risk of an imminent collision;
COAG means the Council of Australian Governments;
COAG Council means the council established by COAG that has
responsibility for marine safety;
Commonwealth Minister means the Minister of State of the
Commonwealth administering this Law;
company has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth;
Note—
Under the Income Tax Assessment Act 1997 of the Commonwealth,
company includes an unincorporated association or body of
persons.
crew of a vessel means individuals employed or engaged in any
capacity on board the vessel on the business of the vessel, other than the
master of the vessel or a pilot;
Criminal Code means the Criminal Code of the
Commonwealth;
defence vessel means a warship or other vessel
that—
(a) is operated for naval or military purposes by the Australian Defence
Force or the armed forces of a foreign country; and
(b) bears external marks of nationality; and
(c) is manned by seafarers under armed forces discipline (however
described);
domestic commercial vessel see
section 7;
enforcement powers see
section 105;
enforcement warrant means—
(a) a warrant issued under
section 135;
or
(b) a warrant signed by a magistrate under
section 136;
entity means any of the following:
(a) an individual;
(b) a company;
(c) a trust;
(d) a partnership;
(e) a corporation sole;
(f) a body politic;
evidential material means—
(a) a thing with respect to which an offence against this Law has been
committed or is suspected, on reasonable grounds, of having been committed;
or
(b) a thing that there are reasonable grounds for suspecting will afford
evidence as to the commission of an offence against this Law; or
(c) a thing that there are reasonable grounds for suspecting is intended
to be used for the purpose of committing an offence against this Law;
foreign vessel has the same meaning as in the Navigation
Act 2012 of the Commonwealth;
general monitoring powers see
section 104;
hire and drive vessel means any vessel which is let for hire
or reward or for any other consideration, including vessels provided in
conjunction with holiday establishments or hotels for the use of guests or
tenants;
hirer of a hire and drive vessel means—
(a) a person who hires the vessel; or
(b) a person, other than the owner of the vessel or a person acting on the
owner’s behalf, who operates the vessel while it is under hire;
improvement notice means an improvement notice issued under
section 110;
infringement notice means—
(a) a notice that—
(i) is given under regulations made for the purposes of
section 138 to a
person alleged to have committed an offence against this Law; and
(ii) states that if the person pays a specified amount within a specified
period the person will not be liable to be prosecuted for the offence;
or
(b) a notice that—
(i) is given under regulations made for the purposes of
section 162(3) to a
person alleged to have contravened a provision described in that subsection;
and
(ii) states that if the person pays a specified amount within a specified
period the person will not be liable to proceedings for a civil penalty for the
contravention;
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution of the Commonwealth;
marine incident means any of the following:
(a) a death of, or injury to, a person associated with the operation or
navigation of a domestic commercial vessel;
(b) the loss or presumed loss of a domestic commercial vessel;
(c) a collision of a domestic commercial vessel with another
vessel;
(d) a collision by a domestic commercial vessel with an object;
(e) the grounding, sinking, flooding or capsizing of a domestic commercial
vessel;
(f) a fire on board a domestic commercial vessel;
(g) a loss of stability of a domestic commercial vessel that affects the
safety of the vessel;
(h) the structural failure of a domestic commercial vessel;
(i) a close quarters situation;
(j) an event that results in, or could have resulted in—
(i) the death of, or injury to, a person on board a domestic commercial
vessel; or
(ii) the loss of a person from a domestic commercial vessel; or
(iii) a domestic commercial vessel becoming disabled and requiring
assistance;
(k) the fouling or damaging by a domestic commercial vessel
of—
(i) any pipeline or submarine cable; or
(ii) any aid to navigation within the meaning of the Navigation Act
2012 of the Commonwealth;
(l) a prescribed incident involving a domestic commercial
vessel;
marine safety equipment means equipment designed or used to
prevent a marine incident, or mitigate the consequences of a marine incident,
and includes, but is not limited to, the following things carried or installed
on a domestic commercial vessel:
(a) personal flotation devices;
(b) telecommunications systems;
(c) flares and other devices that can be used to attract attention to the
vessel or indicate the vessel’s position;
(d) position identification systems;
(e) anchors and other devices that may be used to maintain the
vessel’s position or stability;
(f) oars and other alternative means of propulsion;
(g) fire extinguishers;
(h) lights;
(i) thermal protective aids;
(j) such other equipment as is prescribed by the regulations;
marine safety inspector means—
(a) a person appointed as an inspector under
section 91;
or
(b) a member of the Australian Federal Police; or
(c) a member of the police force (however described) of a State or a
Territory;
monitoring warrant means a warrant issued under
section 134;
National Marine Safety Regulator see
section 9;
National Regulator see
section 9;
National Standard for Commercial Vessels means the
National Standard for Commercial Vessels adopted by—
(a) the COAG Council; or
(b) if no such entity exists—the entity prescribed by the
regulations for the purposes of this paragraph;
occupier in relation to premises, includes—
(a) a person who apparently represents the occupier of the premises;
and
(b) if the premises are a vessel—the master of the vessel;
offence against this Law includes an offence against the
Crimes Act 1914 of the Commonwealth or the Criminal Code that relates to
this Law;
operate a vessel means—
(a) determine or exercise control over the course or direction of the
vessel or over the means of propulsion of the vessel, whether or not the vessel
is underway; or
(b) load or unload the vessel when it is moored or berthed;
owner of a vessel includes—
(a) a person who has a legal or beneficial interest in the vessel, other
than as a mortgagee; and
(b) a person with overall general control and management of the
vessel,
for this purpose, a person is not taken to have overall general control and
management of a vessel merely because he or she is the master or pilot of the
vessel;
partnership has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth;
personal information means information or an opinion
(including information or an opinion forming part of a database), whether true
or not, and whether recorded in a material form or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion;
person assisting a marine safety inspector: see
section 114;
pilot means a person who does not belong to, but has the
conduct of, a vessel;
premises includes the following:
(a) a structure,
building, vehicle, vessel or aircraft;
(b) a place (whether or
not enclosed or built on);
(c) a part of a thing referred to in
paragraph (a) or
(b);
prohibition notice means a prohibition notice issued under
section 111;
regulated Australian vessel has the same meaning as in the
Navigation Act 2012 of the Commonwealth;
reviewable decision see
section 139;
this Law includes the regulations and any other legislative
instrument made under this Law;
trust means a person in the capacity of trustee or, as the
case requires, a trust estate;
trustee has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth;
Uniform Shipping Laws Code means the Uniform Shipping Laws
Code adopted by—
(a) the COAG Council; or
(b) if no such entity exists—the entity prescribed by the
regulations for the purposes of this paragraph;
unique identifier in relation to a vessel, means a unique
identifier issued under
section 31;
unsafe vessel means a vessel that is likely to endanger any
person for any reason, including because of—
(a) the condition or equipment of the vessel; or
(b) the manner or place in which cargo or equipment on the vessel is
stowed or secured; or
(c) the nature of the cargo; or
(d) the overloading of the vessel with people or cargo (including the
submergence of the vessel’s load line); or
(e) the number of its crew or the qualifications of its crew or
master;
vessel see
section 8;
vessel monitoring powers see
section 99;
warrant means a monitoring warrant or an enforcement
warrant.
7—Definition
of domestic commercial
vessel
domestic commercial vessel means a vessel that is for use in
connection with a commercial, governmental or research activity.
(2) The use of a vessel
in connection with an activity that is not a commercial, governmental or
research activity at the same time as the vessel is used in connection with a
commercial, governmental or research activity does not prevent the vessel from
being a domestic commercial vessel.
(3) Despite
subsection (1), a
vessel is not a domestic commercial vessel if the vessel—
(a) is a regulated Australian vessel; or
(b) is a foreign vessel; or
(c) is a defence vessel; or
(i) a primary or secondary school; or
(ii) a community group
of a kind prescribed by the regulations.
Note—
Generally an Australian vessel will be a regulated Australian vessel if it
voyages outside Australia’s exclusive economic zone at any time. Regulated
Australian vessels are dealt with by the Navigation Act 2012 of the
Commonwealth rather than this Law.
(4) Despite
subsection (3)(d), a
vessel covered by that subsection is a domestic commercial vessel at any time
when it is being used for—
(a) a purpose prescribed by the regulations; or
(b) an activity prescribed by the regulations.
(5) Despite
subsections (1) and
(2), the regulations may
provide as follows:
(a) that a specified thing, or a thing included in a specified class, is a
domestic commercial vessel;
(b) that a specified thing, or a thing included in a specified class, is
not a domestic commercial vessel.
(6) Regulations made for the purposes of
subsection (3)(d)(ii)
may prescribe a kind by reference to a decision of the National
Regulator.
(7) A vessel in the
course of construction is a domestic commercial vessel if the
vessel is, after completion, for use as a domestic commercial vessel.
(8) For the purposes of
subsection (7), a
vessel that has been launched, but has not been completed and delivered under
the relevant building contract, is taken to be a vessel in the course of
construction.
(1) In this
Law—
vessel means a craft for use, or that is capable of
being used, in navigation by water, however propelled or moved, and includes an
air cushion vehicle, a barge, a lighter, a submersible, a ferry in chains and a
wing in ground effect craft.
(2) Despite
subsection (1), none
of the following is a vessel:
(a) an aircraft;
(b) a thing that is a facility for the purposes of Schedule 3 to the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the
Commonwealth.
(3) Despite
subsections (1) and
(2), the regulations may
provide as follows:
(a) that a specified
thing, or a thing included in a specified class, is a vessel;
(b) that a specified thing, or a thing included in a specified class, is
not a vessel.
Part 2—The National Marine Safety
Regulator
9—The
National Marine Safety Regulator
The Australian Maritime Safety Authority is the National Marine
Safety Regulator (referred to in this Act as the National
Regulator).
Note—
The Australian Maritime Safety Authority is established by the
Australian Maritime Safety Authority Act 1990 of the Commonwealth.
Section 10 of that Act sets out the general powers of the Authority.
10—Functions
of the National Regulator
The National Regulator has the following functions:
(a) to make and maintain Marine Orders made under
section 163;
(b) to develop and maintain national standards, guidelines and codes of
practice relating to marine safety;
(c) to issue unique identifiers and certificates for the purposes of this
Law and perform other functions in relation to such identifiers and
certificates;
(d) to accredit persons and approve training organisations for the
purposes of this Law;
(e) to undertake investigation, monitoring and enforcement activities
under or for the purposes of this Law;
(f) to consult appropriate authorities of the States and Territories, and
other persons, associations and organisations, on matters related to the
activities of the National Regulator;
(g) to collect and distribute information, and provide advice,
to—
(i) the Commonwealth Minister; and
(ii) the States and Territories; and
(iii) the public,
on matters related to the activities of the National Regulator and the
operation of this Law;
(h) to develop or commission education programs relating to marine
safety;
(i) to collect, analyse and disseminate data relating to marine
safety;
(j) such other functions as are conferred on the National Regulator by
this Law or any other law (including a law of the Commonwealth, a State or the
Northern Territory);
(k) to perform functions incidental to any of the previously described
functions.
(1) The National
Regulator may, by writing, delegate one or more of the National
Regulator’s powers or functions under this Law to one or more of the
following:
(a) an officer or employee of an agency of the Commonwealth;
(b) an officer or employee of an agency of a State or the Northern
Territory.
(2) A delegate of the National Regulator is subject to the National
Regulator’s directions in the exercise of delegated powers and the
performance of delegated functions.
(3) A person (the
delegate) to whom a power or function is delegated under
subsection (1) may,
by writing, sub-delegate that power or function to another officer or employee
(the sub-delegate) of the agency of which the delegate is an
officer or employee.
(4) A sub-delegate is subject to the directions of the delegate in the
exercise of delegated powers and the performance of delegated
functions.
(5) If the delegate is subject to a direction by the National Regulator in
relation to the performance of the function or the exercise of the power
sub-delegated under
subsection (3), the
delegate must give a corresponding direction to the sub-delegate.
(6) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
of the Commonwealth apply to a sub delegation in the same way as they apply to a
delegation.
(7) The National Regulator must not delegate a power or function under
subsection (1) to an
officer or employee of an agency of a State or the Northern Territory without
the agreement of the State or the Northern Territory, as the case
requires.
Part 3—General safety duties relating to
domestic commercial vessels
Division 1—Duties of
owners
12—Duty
of owners of domestic commercial vessels to ensure safety of vessels, marine
safety equipment and operations
(1) An owner of a
domestic commercial vessel must, so far as reasonably practicable, ensure the
safety of—
(a) the vessel; and
(b) marine safety equipment that relates to the vessel; and
(c) the operation of the vessel.
(2) Without limiting
subsection (1), an
owner of a domestic commercial vessel contravenes that subsection
if—
(a) the owner does not provide or maintain the vessel so that the vessel
is, so far as reasonably practicable, safe; or
(b) the owner does not implement and maintain a safety management system
that ensures that the vessel and the operations of the vessel are, so far as
reasonably practicable, safe; or
(c) the owner does not provide, so far as reasonably practicable, such
information, instruction, training or supervision to people on board the vessel
as is necessary to ensure their safety.
(3) Without limiting
subsection (1), an
owner of a domestic commercial vessel contravenes that subsection
if—
(a) the owner operates the vessel, or causes or allows the vessel to be
operated; and
(b) the vessel is an unsafe vessel.
(4) Without limiting
subsection (1), an
owner of a domestic commercial vessel contravenes that subsection if the owner
prevents or restricts the master of the vessel from making or implementing a
decision that, in the professional opinion of the master, is necessary for the
safety of a person or the vessel.
13—Offences
relating to contraventions of
section 12
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 12(1);
and
(c) the person intends the act or omission to be a risk to the safety of a
person or the domestic commercial vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 12(1);
and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 12(1);
and
(c) the person is negligent as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 12(1).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 2—Duties of designers, builders,
suppliers etc
14—Duty
relating to design, manufacture etc of domestic commercial
vessels
A person who designs, commissions, constructs, manufactures, supplies,
maintains, repairs or modifies a domestic commercial vessel, or marine safety
equipment that relates to such a vessel, must—
(a) ensure, so far as
reasonably practicable, that the vessel or equipment is safe if used for a
purpose for which it was designed, commissioned, constructed, manufactured,
supplied, maintained, repaired or modified, as the case may be; and
(i) carry out, or arrange the carrying out of, such testing and
examination as may be necessary for compliance with
paragraph (a);
or
(ii) ensure that such testing and examination has been carried out;
and
(c) take such action as is necessary to ensure that there will be
available, in connection with the use of the vessel or equipment, adequate
information about—
(i) the use for which the vessel or equipment was designed, commissioned,
constructed, manufactured, supplied, maintained, repaired or modified, as the
case may be; and
(ii) the results of any testing or examination referred to in
paragraph (b);
and
(iii) any conditions necessary to ensure the vessel or equipment is safe
if it is used for a purpose for which it was designed, commissioned,
constructed, manufactured, supplied, maintained, repaired or modified, as the
case may be.
15—Offences
relating to contraventions of
section 14
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 14;
and
(c) the person intends the act or omission to be a risk to the safety of a
person or the domestic commercial vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 14;
and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 14;
and
(c) the person is negligent as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 14.
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 3—Duties of
masters
16—Duty
of masters of domestic commercial vessels to ensure safety of vessels, marine
safety equipment and operations
(1) The master of a
domestic commercial vessel must, so far as reasonably practicable, ensure the
safety of—
(a) the vessel; and
(b) marine safety equipment that relates to the vessel; and
(c) the operation of the vessel.
(2) Without limiting
subsection (1), the
master of a domestic commercial vessel contravenes that subsection if the master
does not, so far as reasonably practicable, implement and comply with the safety
management system for the vessel and the operations of the vessel.
(3) Without limiting
subsection (1), the
master of a domestic commercial vessel contravenes that subsection
if—
(a) the master operates the vessel, or causes or allows the vessel to be
operated; and
(b) the vessel is an unsafe vessel.
(4) Without limiting
subsection (1), the
master of a domestic commercial vessel contravenes that subsection if, when
carrying out duties as master or doing anything in relation to the vessel, the
master interferes with or misuses anything provided on the vessel in the
interests of the safety of the vessel.
(5)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
17—Duty
of masters of domestic commercial vessels to take reasonable care for safety of
persons
(1) The master of a
domestic commercial vessel must, when carrying out duties as master of the
vessel—
(a) take reasonable care for his or her own safety; and
(b) take reasonable care for the safety of persons who may be affected by
his or her acts or omissions.
(2) The master of a
domestic commercial vessel must not unreasonably place the safety of another
person at risk when carrying out duties as master of the vessel.
(3) Subsections
(1) and
(2)
do not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
18—Offences
relating to contraventions of
section 16 or
17
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 16(1) or
17(1) or
(2);
and
(c) the person intends the act or omission to be a risk to the safety of a
person or the domestic commercial vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty units, or
both.
(2) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 16(1) or
17(1) or
(2);
and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 16(1) or
17(1) or
(2);
and
(c) the person is negligent as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 16(1) or
17(1) or
(2).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 4—Duties of crew
19—Duty
of crew of domestic commercial vessels to take reasonable care for safety of
persons, etc
(1) A member of the
crew of a domestic commercial vessel, when carrying out duties as a member of
the crew, must—
(a) take reasonable care for his or her own safety; and
(b) take reasonable care for the safety of persons who may be affected by
his or her acts or omissions; and
(c) comply with any reasonable and lawful directions of the master of the
vessel or a supervisor.
(2) A member of the
crew of a domestic commercial vessel must not interfere with or misuse anything
provided on the vessel in the interests of the safety of the vessel.
(3) A member of the
crew of a domestic commercial vessel must not unreasonably place the safety of
another person at risk when carrying out duties as a member of the
crew.
(4) Without limiting
subsection (1), a
member of the crew of a domestic commercial vessel contravenes that subsection
if the member of the crew prevents or restricts the master of the vessel from
making or implementing a decision that, in the professional opinion of the
master, is necessary for the safety of a person or the vessel.
20—Offences
relating to contraventions of
section 19
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 19(1),
(2) or
(3);
and
(c) the person intends the act or omission to be a risk to the safety of a
person or the domestic commercial vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 19(1),
(2) or
(3);
and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 19(1),
(2) or
(3);
and
(c) the person is negligent as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 19(1),
(2) or
(3).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 5—Duties of
passengers
21—Duty
of passengers on domestic commercial vessels to take reasonable care for safety
of persons, etc
(1) A passenger on
board a domestic commercial vessel must—
(a) take reasonable care for his or her safety; and
(b) comply with any reasonable and lawful directions of the master or a
member of the crew of the vessel, if the passenger has been advised that
non-compliance may constitute an offence.
(2) A passenger on
board a domestic commercial vessel must not interfere with or misuse anything
provided on the vessel in the interests of the safety of the vessel.
(3) A passenger on
board a domestic commercial vessel must not unreasonably place at risk the
safety of another person.
(4) Without limiting
subsection (1), a
passenger on board a domestic commercial vessel contravenes that subsection if
the passenger prevents or restricts the master of the vessel from making or
implementing a decision that, in the professional opinion of the master, is
necessary for the safety of a person or the vessel.
22—Offences
relating to contraventions of
section 21
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 21(1),
(2) or
(3);
and
(c) the person intends the act or omission to be a risk to the safety of a
person or the domestic commercial vessel concerned.
Penalty: Imprisonment for 12 months or 200 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 21(1),
(2) or
(3);
and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person or the domestic commercial vessel concerned.
Penalty: 160 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 21(1),
(2) or
(3).
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 21(1),
(2) or
(3).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 6—Other duties
23—Duty
of persons relating to safety of persons on domestic commercial vessels,
etc
(1) A person embarking
on, on board or disembarking from a domestic commercial vessel must take
reasonable care for his or her own safety.
(2) Without limiting
subsection (1), a
person contravenes that subsection if the person prevents or restricts the
master of the vessel from making or implementing a decision that, in the
professional opinion of the master, is necessary for the safety of the
person.
(3) A person must take
reasonable care that his or her acts and omissions do not adversely affect the
safety of another person if that other person—
(a) is on board a domestic commercial vessel; or
(b) is taking an action connected with a domestic commercial
vessel.
(4) Without limiting
subsection (3), a
person contravenes that subsection if the person prevents or restricts the
master of the vessel from making or implementing a decision that, in the
professional opinion of the master, is necessary for the safety of another
person referred to in that subsection.
24—Offences
relating to contraventions of
section 23
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 23(1) or
(3); and
(c) the person intends the act or omission to be a risk to the safety of a
person.
Penalty: Imprisonment for 12 months or 200 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 23(1) or
(3); and
(c) the person is reckless as to whether the act or omission is a risk to
the safety of a person.
Penalty: 160 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 23(1) or
(3); and
(c) the person is negligent as to whether the act or omission is a risk to
the safety of a person.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 23(1) or
(3).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
25—Duty
of persons in relation to domestic commercial vessels
(1) A person must not
unreasonably cause, or do an act or omit to do an act that may cause, the loss
or destruction of, or serious damage to, a domestic commercial vessel.
(2) A person must take
such actions as are reasonably practicable to prevent the loss or destruction
of, or serious damage to, a domestic commercial vessel.
(3) Without limiting
subsection (1), a
person contravenes that subsection if the person prevents or restricts the
master of the vessel from making or implementing a decision that, in the
professional opinion of the master, is necessary for the safety of the
vessel.
26—Offences
relating to contraventions of
section 25
(1) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 25(1)or
(2); and
(c) the person intends the act or omission to cause the loss or
destruction of, or serious damage to, the domestic commercial vessel
concerned.
Penalty: Imprisonment for 12 months or 200 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 25(1) or
(2); and
(c) the person is reckless as to whether the act or omission will cause
the loss or destruction of, or serious damage to, the domestic commercial vessel
concerned.
Penalty: 160 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 25(1) or
(2); and
(c) the person is negligent as to whether the act or omission will cause
the loss or destruction of, or serious damage to, the domestic commercial vessel
concerned.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes
section 25(1) or
(2).
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 7—General
provisions
27—Determining
what is reasonably practicable to ensure safety
In this Law, reasonably practicable, in relation to a duty
imposed upon a person to ensure safety, means that which is, or was at a
particular time, reasonably able to be done in relation to ensuring safety,
taking into account and weighing up all relevant matters,
including—
(a) the likelihood of the hazard or risk concerned eventuating;
and
(b) the degree of harm that might result from the hazard or risk concerned
eventuating; and
(c) what the person concerned knows, or ought reasonably to know,
about—
(i) the hazard or the risk concerned; and
(ii) ways of eliminating or minimising the hazard or risk concerned;
and
(d) the availability and suitability of ways to eliminate or minimise the
hazard or risk concerned; and
(e) after assessing the extent of the hazard or risk concerned and the
available ways of eliminating or minimising the hazard or risk concerned, the
cost associated with available ways of eliminating or minimising the hazard or
risk concerned, including whether the cost is grossly disproportionate to the
hazard or risk concerned.
28—Functions
and powers of marine safety inspectors not affected
To avoid doubt,
subsections 21(4),
23(2) and
(4)
and
25(3) do not affect the
performance of a function or the exercise of a power under this Law by a marine
safety inspector.
29—Requirements
imposed by this Part do not limit one another
The requirements imposed by this Part do not limit one another.
Part 4—Vessel identifiers and certificates for
vessels and seafarers
Division 1—Unique
identifiers
30—Person
may apply for unique identifier
(1) A person may apply to the National Regulator for a unique identifier
for a domestic commercial vessel.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
Note—
Regulations could provide for the application to be made in conjunction
with an application for a certificate (for example, a certificate of
operation).
(1) The National
Regulator must, by written instrument, issue a unique identifier for a domestic
commercial vessel if—
(a) an application for the unique identifier has been made under
section 30;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations are met in relation to the issue of the unique
identifier.
(2) Without limiting the criteria that may be prescribed, the regulations
are to include criteria relating to the identification of the vessel.
(3) A unique identifier comes into force on the day specified in the
written instrument or, if no day is so specified, on the day on which it is
issued.
32—Offence—operating
etc a vessel without a unique identifier (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner—
(i) operates the vessel, or causes or permits the vessel to be operated;
or
(ii) causes or permits the vessel to be in navigable waters; and
(b) a unique identifier is not in force for the vessel; and
(c) the vessel is not exempt from the requirement to have a unique
identifier (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
33—Offence—operating
etc a vessel without a unique identifier (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master—
(i) operates the vessel, or causes or permits the vessel to be operated;
or
(ii) causes or permits the vessel to be in navigable waters; and
(b) a unique identifier is not in force for the vessel; and
(c) the vessel is not exempt from the requirement to have a unique
identifier (see
section 143).
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
34—Offence—display
etc of a unique identifier (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner—
(i) operates the vessel, or causes or permits the vessel to be operated;
or
(ii) causes or permits the vessel to be in navigable waters; and
(b) a unique identifier is not displayed on the vessel in accordance with
the regulations.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
35—Offence—display
etc of unique identifier (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master—
(i) operates the vessel, or causes or permits the vessel to be operated;
or
(ii) causes or permits the vessel to be in navigable waters; and
(b) a unique identifier is not displayed on the vessel in accordance with
the regulations.
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
36—Offence—removal
or alteration of a unique identifier
(1) A person commits an
offence if—
(a) the person removes or alters a unique identifier that is displayed on
a domestic commercial vessel; and
(b) the removal or alteration is not permitted by the
regulations.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 2—Certificates of
survey
37—Person
may apply for a certificate of survey
(1) A person may apply to the National Regulator for a certificate of
survey for a domestic commercial vessel.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
38—Issue
of certificate of survey
(1) The National
Regulator must issue a certificate of survey for a domestic commercial vessel
if—
(a) an application for the certificate has been made under
section 37;
and
(b) the National Regulator is satisfied that the vessel has been surveyed
in accordance with the regulations; and
(c) the National Regulator is satisfied that the criteria prescribed by
the regulations are met in relation to the issue of the certificate.
(2) Without limiting the criteria that may be prescribed, the regulations
are to include criteria relating to—
(a) the technical specifications that the vessel must satisfy;
and
(b) the standards prescribed as mentioned in
section 159 that the
vessel must satisfy.
(3) A certificate of
survey is subject to—
(a) the conditions (if any) prescribed by the regulations; and
(b) the conditions (if
any) imposed by the National Regulator.
(4) Conditions prescribed by the regulations or imposed by the National
Regulator may include, but are not limited to, conditions relating
to—
(a) the frequency with which a vessel must be surveyed; and
(b) compliance with standards prescribed as mentioned in
section 159.
(5) A certificate of survey—
(a) comes into force on the day specified in the certificate, or, if no
day is so specified, on the day on which it is issued; and
(b) subject to
subsection (6),
remains in force until the day specified in the certificate, unless it is
revoked earlier.
(6) A certificate of
survey is not in force at any time when it is suspended.
39—Person
may apply for variation, suspension or revocation of a certificate of
survey
(1) A person may apply to the National Regulator for a variation,
suspension or revocation of a certificate of survey for a domestic commercial
vessel.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
40—Variation
of certificate of survey
(1) The National
Regulator must vary a certificate of survey if—
(a) an application for variation of the certificate has been made under
section 39;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the variation are met.
(2) The National
Regulator must vary a certificate of survey on the National Regulator’s
initiative if the National Regulator is satisfied that the criteria prescribed
by the regulations in relation to variation on the initiative of the National
Regulator are met.
(3) Without limiting
subsections (1) and
(2), the National
Regulator may vary a certificate of survey to impose a condition on the
certificate or to vary or revoke such a condition.
41—Suspension
of certificate of survey
(1) The National
Regulator must suspend a certificate of survey if—
(a) an application for suspension of the certificate has been made under
section 39;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the suspension are met.
(2) The National
Regulator must suspend a certificate of survey on the National Regulator’s
initiative if the National Regulator is satisfied that the suspension is
necessary—
(a) for the purpose of—
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious threat to the
environment; or
(b) for another purpose
prescribed by the regulations.
(a) comes into force on the day specified by the National Regulator in
writing or, if no day is so specified, on the day the holder of the certificate
is notified in writing of the suspension; and
(i) the end of the
period specified in writing by the National Regulator, which must not exceed the
prescribed period; or
(ii) if no period is specified—the end of the prescribed
period,
unless it is revoked earlier.
(4) A period referred to in
subsection (3)(b)(i)
may be specified by reference to the fulfilment of a requirement or condition
specified by the Regulator.
42—Revocation
of certificate of survey
(1) The National
Regulator must revoke a certificate of survey if—
(a) an application for revocation of the certificate has been made under
section 39;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to revocation on application are met.
(2) The National
Regulator must revoke a certificate of survey on the National Regulator’s
initiative if the National Regulator is satisfied that the criteria prescribed
by the regulations in relation to revocation on the initiative of the National
Regulator are met.
43—Offence—operating
etc a vessel without a certificate of survey (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner operates the vessel, or causes or permits the vessel to be
operated; and
(b) a certificate of survey is not in force for the vessel; and
(c) the vessel is not exempt from survey (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
44—Offence—operating
etc a vessel without a certificate of survey (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master operates the vessel, or causes or permits the vessel to be
operated; and
(b) a certificate of survey is not in force for the vessel; and
(c) the vessel is not exempt from survey (see
section 143).
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
45—Offence—breach
of a condition of a certificate of survey (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner operates the vessel, or causes or permits the vessel to be
operated; and
(b) the operation of the vessel is in breach of a condition of the
certificate of survey of the vessel.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
46—Offence—breach
of a condition of a certificate of survey (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master operates the vessel, or causes or permits the vessel to be
operated; and
(b) the operation of the vessel is in breach of a condition of the
certificate of survey of the vessel.
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 3—Certificates of
operation
47—Person
may apply for a certificate of operation
(1) A person may apply to the National Regulator for a certificate of
operation for one or more domestic commercial vessels.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
(3) If the application is for more than one domestic commercial vessel,
each vessel must be separately identified in the application.
48—Issue
of certificate of operation
(1) The National
Regulator must issue a certificate of operation for one or more domestic
commercial vessels if—
(a) an application for the certificate has been made under
section 47;
and
(b) the National Regulator is satisfied that the applicant has
demonstrated appropriate competence and capacity in relation to the safe
operation of the vessel; and
(c) the National Regulator is satisfied that the criteria prescribed by
the regulations are met in relation to the issue of the certificate.
(2) Despite
subsection (1), the
National Regulator may refuse to issue a certificate of operation for one or
more domestic commercial vessels if the National Regulator is satisfied that the
applicant is not a fit and proper person to hold the certificate.
(3) Without limiting the criteria that may be prescribed, the regulations
are to include criteria relating to the safe operation of vessels.
(4) A certificate of
operation is subject to—
(a) the conditions (if any) prescribed by the regulations; and
(b) the conditions (if
any) imposed by the National Regulator.
(5) Conditions prescribed by the regulations or imposed by the National
Regulator on a certificate of operation may include, but are not limited to,
conditions relating to the following for each vessel to which the certificate
relates:
(a) the number of crew required to be on board while the relevant vessel
or vessels are being operated;
(b) qualifications of the master and crew;
(c) the number of people that may be on board;
(d) the condition of specified physical parts of the relevant vessel or
vessels;
(e) safety management systems;
(f) limitations on use by reference to geographical and meteorological
factors and time of day;
(g) operating hours;
(h) compliance with standards prescribed as mentioned in
section 159.
(6) A certificate of operation—
(a) comes into force on the day specified in the certificate, or, if no
day is so specified, on the day on which it is issued; and
(b) subject to
subsection (7),
remains in force until the day specified in the certificate, unless it is
revoked earlier.
(7) A certificate of
operation is not in force at any time when it is suspended.
49—Person
may apply for variation, suspension or revocation of a certificate of
operation
(1) A person may apply to the National Regulator for a variation,
suspension or revocation of a certificate of operation.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
50—Variation
of certificate of operation
(1) The National
Regulator must vary a certificate of operation if—
(a) an application for variation of the certificate has been made under
section 49;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the variation are met.
(2) The National
Regulator must vary a certificate of operation on the National Regulator’s
initiative if the National Regulator is satisfied that the criteria prescribed
by the regulations in relation to variation on the initiative of the National
Regulator are met.
(3) Without limiting
subsections (1) and
(2), the National
Regulator may vary a certificate of operation to impose a condition on the
certificate or to vary or revoke such a condition.
51—Suspension
of certificate of operation
(1) The National
Regulator must suspend a certificate of operation if—
(a) an application for suspension of the certificate has been made under
section 49;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the suspension are met.
(2) The National
Regulator must suspend a certificate of operation on the National
Regulator’s initiative if the National Regulator is satisfied that the
suspension is necessary—
(a) for the purpose of—
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious threat to the
environment; or
(b) for another purpose
prescribed by the regulations.
(a) comes into force on the day specified by the National Regulator in
writing or, if no day is so specified, on the day the holder of the certificate
is notified in writing of the suspension; and
(i) the end of the
period specified in writing by the National Regulator, which must not exceed the
prescribed period; or
(ii) if no period is specified—the end of the prescribed
period,
unless it is revoked earlier.
(4) A period referred to in
(3)(b)(i) may be
described by reference to the fulfilment of a requirement or condition specified
by the Regulator.
52—Revocation
of certificate of operation
(1) The National
Regulator must revoke a certificate of operation if—
(a) an application for revocation of the certificate has been made under
section 49;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to revocation on application are met.
(2) The National
Regulator must revoke a certificate of operation on the National
Regulator’s initiative if the National Regulator is satisfied that the
criteria prescribed by the regulations in relation to revocation on the
initiative of the National Regulator are met.
(3) Without limiting
subsections (1) and
(2), the National
Regulator may revoke a certificate of operation if the National Regulator is
satisfied that the holder of the certificate is not a fit and proper person to
hold the certificate.
53—Offence—operating
etc a vessel without a certificate of operation (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner operates the vessel, or causes or permits the vessel to be
operated by another person; and
(b) the operation of the vessel is not authorised by a certificate of
operation in force for the vessel; and
(c) the vessel is not exempt from the requirement to have a certificate of
operation (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
54—Offence—operating
etc a vessel without a certificate of operation (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master operates the vessel, or causes or permits the vessel to be
operated by another person; and
(b) the operation of the vessel is not authorised by a certificate of
operation in force for the vessel; and
(c) the vessel is not exempt from the requirement to have a certificate of
operation (see
section 143).
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
55—Offence—breach
of a condition of a certificate of operation (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner operates the vessel, or causes or permits the vessel to be
operated; and
(b) the operation of the vessel is in breach of a condition of the
certificate of operation for the vessel.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
56—Offence—breach
of a condition of a certificate of operation (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master operates the vessel, or causes or permits the vessel to be
operated; and
(b) the operation of the vessel is in breach of a condition of the
certificate of operation for the vessel.
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if—
(a) the vessel is a hire and drive vessel being used wholly for
recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
57—Obligation
to notify National Regulator of certain matters
(1) The holder of a
certificate of operation for a domestic commercial vessel commits an offence
if—
(a) the vessel is sold, modified, sunk or scrapped; and
(b) the holder does not notify the National Regulator within the
prescribed period of the sale, modification, sinking or scrapping of the
vessel.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 4—Certificates of
competency
58—Regulations
may provide for certificate of competency
(1) The regulations may make provision in relation to certificates of
competency.
(2) The regulations may require that an individual hold a certificate of
competency of a particular kind in order to undertake particular duties, or
perform particular functions, in the person’s capacity as the master or a
member of the crew of a domestic commercial vessel.
(3) The regulations may provide for different classes of certificates of
competency.
59—Individual
may apply for a certificate of competency
(1) An individual may apply to the National Regulator for a certificate of
competency.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
60—Issue
of certificate of competency
(1) The National
Regulator must issue a certificate of competency to a person if—
(a) the person has made an application for the certificate under
section 59;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations are met in relation to the issue of the certificate.
(2) Despite
subsection (1), the
National Regulator may refuse to issue a certificate of competency to a person
if the National Regulator is satisfied that the applicant is not a fit and
proper person to hold the certificate.
(3) Without limiting
the criteria that may be prescribed, the regulations—
(a) are to include criteria required to be satisfied for a particular
certificate of competency to be issued to a person; and
(b) may include
criteria relating to tests, including medical tests, and assessments of
experience and competence.
(4) A certificate of competency is subject to—
(a) the conditions (if any) prescribed by the regulations; and
(b) the conditions (if any) imposed by the National Regulator.
(5) Conditions prescribed by the regulations or imposed by the National
Regulator may include, but are not limited to—
(a) conditions relating to tests, including medical tests, and assessments
of experience and competence, that the holder of the certificate must take in
order to retain the certificate; and
(b) limitations relating to the types or classes of domestic commercial
vessels that the holder of the certificate is authorised to operate;
and
(c) the places and kinds of waters in which, and periods during which, the
holder of the certificate is authorised to operate domestic commercial
vessels.
(6) A certificate of competency—
(a) comes into force on the day specified in the certificate or, if no day
is specified, the day on which it is issued; and
(b) subject to
subsection (7),
remains in force until the day specified in the certificate, unless it is
revoked earlier.
(7) A certificate of
competency is not in force at any time when it is suspended.
61—Person
may apply for variation, suspension or revocation of a certificate of
competency
(1) A person may apply to the National Regulator for a variation,
suspension or revocation of a certificate of competency held by the
person.
(2) The application must be in accordance with the regulations and must be
accompanied by the fee prescribed by the regulations (if any).
62—Variation
of certificate of competency
(1) The National
Regulator must vary a certificate of competency if—
(a) an application for variation of the certificate has been made under
section 61;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the variation are met.
(2) The National
Regulator must vary a certificate of competency on the National
Regulator’s initiative if the National Regulator is satisfied that the
criteria prescribed by the regulations in relation to variation on the
initiative of the National Regulator are met.
(3) Without limiting
subsections (1) and
(2), the National
Regulator may vary a certificate of competency to impose a condition on the
certificate or to vary or revoke such a condition.
63—Suspension
of certificate of competency
(1) The National
Regulator must suspend a certificate of competency if—
(a) an application for suspension of the certificate has been made under
section 61;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to the suspension are met.
(2) The National
Regulator must suspend a certificate of competency on the National
Regulator’s initiative if the National Regulator is satisfied that the
suspension is necessary—
(a) for the purpose of—
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious threat to the
environment; or
(b) for another purpose
prescribed by the regulations.
(a) comes into force on the day specified by the National Regulator in
writing or, if no day is so specified, on the day the holder of the certificate
is notified in writing of the suspension; and
(i) the end of the
period specified in writing by the National Regulator, which must not exceed the
prescribed period; or
(ii) if no period is specified—the end of the prescribed
period,
unless it is revoked earlier.
(4) A period referred to in
subparagraph (3)(b)(i)
may be described by reference to the fulfilment of a requirement or condition
specified by the Regulator.
64—Revocation
of certificate of competency
(1) The National
Regulator must revoke a certificate of competency if—
(a) an application for revocation of the certificate has been made under
section 61;
and
(b) the National Regulator is satisfied that the criteria prescribed by
the regulations in relation to revocation on application are met.
(2) The National
Regulator must revoke a certificate of competency on the National
Regulator’s initiative if the National Regulator is satisfied that the
criteria prescribed by the regulations in relation to revocation on the
initiative of the National Regulator are met.
(3) Without limiting
subsections (1) and
(2), the National
Regulator may revoke a certificate of competency if the National Regulator is
satisfied that the holder of the certificate is not a fit and proper person to
hold the certificate.
65—Offence—owner
causing etc performance of duties or functions without a certificate of
competency
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner causes or permits another person to perform duties or
functions in relation to the vessel; and
(b) the regulations require the other person to hold a certificate of
competency of a particular kind in order to perform those duties or functions;
and
(c) the other person does not hold a certificate of competency of that
kind; and
(d) the other person is not exempt from the requirement to hold a
certificate of competency of that kind (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
66—Offence—person
performing duties or functions without a certificate of
competency
(1) A person commits an
offence if—
(a) the person performs duties or functions in relation to a domestic
commercial vessel; and
(b) the regulations require the person to hold a certificate of competency
of a particular kind in order to perform those duties or functions;
and
(c) the person does not hold a certificate of competency of that kind;
and
(d) the person is not exempt from the requirement to hold a certificate of
competency of that kind (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
67—Offence—master
causing etc performance of duties or functions without a certificate of
competency
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master causes or permits another person to perform duties or
functions in relation to the vessel; and
(b) the regulations require the other person to hold a certificate of
competency of a particular kind in order to perform those duties or functions;
and
(c) the other person does not hold a certificate of competency of that
kind; and
(d) the other person is not exempt from the requirement to hold a
certificate of competency of that kind (see
section 143).
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
68—Offence—owner
causing etc breach of a condition of a certificate of
competency
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the owner causes or permits another person to perform duties or
functions in relation to the vessel; and
(b) the performance of the duties or functions is in breach of a condition
of a certificate of competency held by the other person.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
69—Offence—breach
of a condition of a certificate of competency by any person
(1) A person commits an
offence if—
(a) the person performs duties or functions in relation to a domestic
commercial vessel; and
(b) the performance of the duties or functions is in breach of a condition
of a certificate of competency held by the person.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
70—Offence—master
causing etc breach of a condition of a certificate of
competency
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the master causes or permits another person to perform duties or
functions in relation to the vessel; and
(b) the performance of the duties or functions is in breach of a condition
of a certificate of competency held by the other person.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 5—General matters relating to unique
identifiers and certificates
71—National
Regulator may require information
(1) The National Regulator may require a person to give further
information in relation to an application by the person for a certificate or a
unique identifier.
(2) The National Regulator may require information to be given under this
section at any time before the National Regulator decides the application,
whether before or after the National Regulator has begun to consider the
application.
(3) If the National Regulator requires information to be given under this
section in relation to an application, the National Regulator may decline to
consider or further consider the application until the information is
provided.
72—National
Regulator must give a show cause notice before varying, suspending or revoking a
certificate
(1) The National
Regulator must, before varying or revoking a certificate—
(a) give the holder of the certificate notice in writing inviting the
holder to show cause, within a reasonable period specified in the notice, why
the variation should not be made or the certificate should not be revoked;
and
(b) consider any representations the holder makes to the National
Regulator within that period.
(2) The National
Regulator must, before suspending a certificate in accordance with
section 41(2)(b),
51(2)(b) or
63(2)(b)—
(a) give the holder of the certificate notice in writing inviting the
holder to show cause, within a reasonable period specified in the notice, why
the certificate should not be suspended; and
(b) consider any representations the holder makes to the National
Regulator within that period.
(3) The National Regulator is not required to give a notice under
subsection (1) or
(2) before varying,
suspending or revoking a certificate on application made by the holder of the
certificate.
73—National
Regulator may recognise certificates
(1) The National
Regulator may, by written instrument, recognise a certificate, or a class of
certificates, issued for a vessel or a person under a law of the Commonwealth, a
State or a Territory, or a law of a foreign country, if the National Regulator
is satisfied—
(a) that the certificate is the equivalent of, or that it is otherwise
appropriate to recognise the certificate as the equivalent of, a prescribed
certificate; or
(b) that the class of certificates is the equivalent of, or that it is
otherwise appropriate to recognise the class of certificates as the equivalent
of, a prescribed class of certificates.
(2) At a time when a certificate in force for a vessel or a person is
recognised under this section, the prescribed certificate is taken to be in
force for the vessel or the person.
(3) The National
Regulator may specify conditions to which the recognition of the certificate is
subject.
(4) A recognition of a certificate ceases to have effect if a condition to
which its recognition is subject is contravened.
(5) The National Regulator may revoke a recognition of a certificate in
the circumstances prescribed by the regulations.
(6) An instrument made under
subsection (1) is
not a legislative instrument.
(1) In determining whether a person is a fit and proper person for the
purposes of deciding whether to issue or revoke a certificate, the National
Regulator may have regard only to—
(a) any conviction of the person for an offence against this Law;
and
(b) any conviction of the person for an offence against a law of the
Commonwealth, a State or a Territory that is relevant for the purposes of
deciding whether the person is suitable to hold the certificate; and
(c) any other matter prescribed by the regulations.
(2) This section does not affect the operation of Part VIIC of the
Crimes Act 1914 of the Commonwealth (which includes provisions that, in
certain circumstances, relieve persons of the requirement to disclose spent
convictions and require persons aware of such convictions to disregard
them).
75—Regulations
may provide for matters relating to certificates and unique
identifiers
The regulations may provide for matters in relation to certificates and
unique identifiers.
76—Regulations
may provide for matters relating to applications for certificates and unique
identifiers
(1) Without limiting
section 75, the
regulations may prescribe the following matters in relation to applications for
certificates and unique identifiers:
(a) the persons who may make applications;
(b) approval of forms for the making of applications;
(c) the manner of making applications;
(d) information required to be included in applications;
(e) documents that must accompany applications;
(f) fees connected with applications;
(g) withdrawal of applications.
(2) The regulations may require information included in applications to be
verified by statutory declaration.
77—Regulations
may make provision in relation to the issue, variation and revocation of
certificates and unique identifiers
(1) Without limiting
section 75, the
regulations may make provision for and in relation to the following:
(a) criteria that must
be satisfied in order for the National Regulator to issue certificates or unique
identifiers, or to vary or revoke certificates;
(b) the time limits within which applications are to be
determined;
(c) the information to be included in certificates;
(d) the person in whose name certificates are to be issued;
(e) conditions to which
certificates are subject;
(f) conditions that the
National Regulator may impose upon certificates;
(g) the time at which certificates, variations of certificates,
suspensions of certificates and revocations of certificates come into
force;
(h) the time at which certificates or suspensions cease to be in
force;
(i) the methods of replacing certificates;
(j) registers of certificates and unique identifiers;
(k) the criteria to be met for variation of certificates—
(i) on application; or
(ii) on the initiative of the National Regulator;
(l) procedures relating to notification of proposed decisions by the
National Regulator.
(2) The criteria that may be prescribed for the purposes of
subsection (1)(a)
include, but are not limited to, criteria relating to compliance with standards
prescribed as mentioned in
section 159.
(3) The conditions that may be prescribed for the purposes of
subsections (1)(e)
and
(f) include, but are not
limited to, conditions relating to compliance with standards prescribed as
mentioned in
section 159.
78—Regulations
may make provision in relation to renewal and transfer of
certificates
Without limiting
section 75, the
regulations may make provision for and in relation to the following:
(a) the renewal of certificates;
(b) the transfer of certificates;
(c) requiring notification to be given of events involving domestic
commercial vessels that have unique identifiers, including, but not limited to,
change of ownership.
79—Regulations
may require display of certificates
The regulations may require that a person display a certificate or a unique
identifier in the prescribed manner.
80—Regulations
may provide for certificate of operation for persons
(1) The regulations may
provide for certificates of operation to be issued to a person permitting the
operation of domestic commercial vessels by the person and other
persons.
(2) Regulations made for the purposes of
subsection (1)
may provide for certificates of operation to be held in relation to one or more
specified vessels (which may be specified by reference to a class and need not
be separately specified).
81—Effect
of certificate of operation for persons
A certificate of operation is taken to be in force for a vessel, and to be
subject to any conditions imposed under the regulations, to the extent
that—
(a) a certificate of operation has been issued under regulations made for
the purposes of
section 80;
and
(b) the certificate of operation permits the operation by a person
of—
(i) the vessel; or
(ii) vessels of a class that includes the vessel; and
(c) the vessel is operated by the person.
A certificate under this Law is issued on the basis that—
(a) the certificate may be revoked or varied under this Law; and
(b) the certificate may be revoked or varied (however described) by or
under later legislation; and
(c) no compensation is payable if the certificate is revoked or varied as
mentioned in either of the above paragraphs.
83—Certificates
etc to be made available
(1) A person commits an
offence if—
(a) the person is the holder of a certificate or other
document—
(i) required to be held under this Law; or
(ii) issued under this Law; and
(b) a copy of the certificate or other document is not made available at
all reasonable times for examination on request by either of the
following:
(i) the National Regulator;
(ii) a marine safety inspector.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
84—National
Regulator may require delivery of revoked certificates
If a certificate is revoked, the National Regulator may require the
certificate to be delivered to the National Regulator in accordance with the
regulations.
Part 5—Assistance and reporting
requirements
85—Obligation
to render assistance
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the vessel is in any waters; and
(b) the master has reason to believe that one or more persons are in
distress on a vessel or in any waters; and
(i) cause his or her vessel to proceed as fast as practicable to the
assistance of the person or persons; and
(ii) inform the person or persons that the master is doing so.
Penalty: Imprisonment for 4 years.
(2)
Subsection (1) does
not apply if—
(a) the master of the domestic commercial vessel is unable to comply with
subsection (1)(c);
or
(b) in the special circumstances of the case, it is unreasonable or
unnecessary for the master of the domestic commercial vessel to do so;
or
(c) the master of the domestic commercial vessel is informed by the person
or persons in distress, or by the master of another vessel that has reached the
person or persons, that assistance is no longer necessary; or
(d) the master of the domestic commercial vessel is informed that another
vessel has been requisitioned and is complying with the requisition.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (2) (see
section 13.3(3) of the Criminal Code).
86—Obligation
to render assistance if requisitioned
(1) The master of a
vessel that is in distress in any waters may, after consulting so far as
possible with the masters of vessels that answer his or her call for assistance,
requisition any domestic commercial vessel that the master considers best able
to render assistance.
(2) The master of a
domestic commercial vessel commits an offence if—
(a) the vessel is requisitioned by the master of another vessel that is in
distress in any waters, in accordance with
subsection (1);
and
(b) the master does not
cause his or her vessel to proceed as fast as practicable to the assistance of
the other vessel.
Penalty: Imprisonment for 10 years.
(3)
Subsection (2) does
not apply if—
(a) the master of the domestic commercial vessel is unable to comply with
subsection (2)(b);
or
(b) in the special circumstances of the case, it is unreasonable or
unnecessary for the master to do so; or
(c) the master of the domestic commercial vessel is informed by the master
of the vessel in distress, or by the master of another vessel that has reached
the vessel in distress, that assistance is no longer necessary; or
(d) the master of the domestic commercial vessel is informed that another
vessel has been requisitioned and is complying with the requisition.
Note—
A defendant bears an evidential burden in relation to the matter in
subregulation (2)
(see section 13.3(3) of the Criminal Code).
87—Obligation
to record requests for assistance
(1) The master of a
domestic commercial vessel commits an offence if the master—
(a) is required to keep an official logbook for the vessel; and
(b) receives information that a person or persons are in distress on a
vessel or in any waters; and
(c) does not record in the official logbook—
(i) that he or she proceeded to the assistance of the person or persons;
or
(ii) if he or she did not so proceed—his or her reasons for not so
proceeding.
Penalty: 50 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
88—Reporting
of marine incidents to National Regulator (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) the vessel is involved in a marine incident that
involves—
(i) the death of a person; or
(ii) serious injury to a person; or
(iii) the loss of a vessel; or
(iv) the loss of a person from the vessel; or
(v) significant damage to a vessel; and
(b) neither the owner nor the master of the vessel reports the incident to
the National Regulator as soon as reasonably practicable, having regard to the
circumstances, after the owner becomes aware of the incident.
Penalty: 60 penalty units.
(2) The owner of a
domestic commercial vessel commits an offence if—
(a) the vessel is involved in a marine incident; and
(b) neither the owner nor the master of the vessel gives a written report
of the incident, in the form approved by the National Regulator, to the National
Regulator within 72 hours after the owner becomes aware of the
incident.
Penalty: 60 penalty units.
(3) An offence against
subsection (1) or
(2) is an offence of
strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
89—Reporting
of marine incidents to National Regulator (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) the vessel is involved in a marine incident that
involves—
(i) the death of a person; or
(ii) serious injury to a person; or
(iii) the loss of a vessel; or
(iv) the loss of a person from a vessel; or
(v) significant damage to a vessel; and
(b) neither the master nor the owner of the vessel reports the incident to
the National Regulator as soon as reasonably practicable after the master
becomes aware of the incident, having regard to the circumstances.
Penalty: 60 penalty units.
(2) The master of a
domestic commercial vessel commits an offence if—
(a) the vessel is involved in a marine incident; and
(b) neither the master nor the owner of the vessel gives a written report
of the incident, in the form approved by the National Regulator, to the National
Regulator within 72 hours after the master becomes aware of the
incident.
Penalty: 60 penalty units.
(3) An offence against
subsection (1) or
(2) is an offence of
strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
90—Evidence
of marine incidents
(1) Preservation of evidence by persons on board
vessel
A person commits an offence if—
(a) a domestic commercial vessel is involved in a marine incident;
and
(b) the person does not, so far as reasonably practicable, preserve any
material that may be relevant to an investigation of the marine
incident.
Penalty: 500 penalty units.
(2) Vessel owner’s duty to ensure preservation of
evidence
The owner of a domestic commercial vessel commits an offence
if—
(a) the vessel is involved in a marine incident; and
(b) the owner does not take all reasonable steps to ensure the
preservation of any material that may be relevant to an investigation of the
marine incident.
Penalty: 500 penalty units.
Part 6—Powers of marine safety
inspectors
Division 1—Appointment of marine safety
inspectors etc
91—Appointment
of marine safety inspectors
(1) The National Regulator may, in writing, appoint either of the
following as a marine safety inspector:
(a) an officer or employee of an agency of the Commonwealth;
(b) an officer or employee of an agency of a State or Territory.
(2) A marine safety inspector may exercise all of the powers of a marine
safety inspector under this Law, or such of those powers as are specified in the
inspector’s instrument of appointment.
(3) The National Regulator must not appoint a person as a marine safety
inspector unless the National Regulator is satisfied that the person has
suitable qualifications or experience to properly exercise the powers of an
inspector.
(4) The National Regulator must not appoint an officer or employee of an
agency of a State or Territory as a marine safety inspector without the
agreement of the State or Territory.
(5) In exercising his or her powers or performing his or her functions as
a marine safety inspector, the inspector must comply with any direction of the
National Regulator.
(1) The National Regulator must issue an identity card to a marine safety
inspector appointed under
section 91.
(2) The identity card must—
(a) be in the form approved by the National Regulator; and
(b) contain a recent photograph of the marine safety inspector;
and
(c) state the powers that the inspector may exercise.
(3) A person commits an
offence if—
(a) the person has been issued with an identity card; and
(b) the person ceases to be a marine safety inspector; and
(c) the person does not, as soon as practicable after so ceasing, return
the identity card to the National Regulator.
Penalty: 5 penalty units.
(4) An offence against
subsection (3) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
(5)
Subsection (3) does
not apply if the identity card was lost or destroyed.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (5) (see
section 13.3(3) of the Criminal Code).
(6) A marine safety inspector appointed under
section 91 must
carry his or her identity card at all times when exercising powers and
performing functions and duties as an inspector.
93—False
representation about being a marine safety inspector
(1) A person must not
make a representation that the person is a marine safety inspector if the person
is not a marine safety inspector.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
94—Obstructing
or hindering a marine safety inspector
A person must not obstruct or hinder a marine safety inspector in the
exercise of his or her powers under this Law.
Penalty: 500 penalty units.
Division 2—Entry, search, seizure, detention
and information gathering powers
Subdivision 1—Powers to facilitate boarding
with or without consent or warrant
95—Requirement
to facilitate boarding
(1) A marine safety
inspector may require a person to take reasonable steps to facilitate the
boarding of a vessel under this Part.
(2) A requirement under
subsection (1) may
be made by any reasonable means.
(3) The requirement is made whether or not the person in charge of the
vessel understands or is aware of the requirement.
(4) Offence—non-compliance
with requirement
A person commits an offence if—
(a) a requirement is made of the person under
subsection (1);
and
(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
(5)
Subsection (4) does
not apply if the person has a reasonable excuse.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (5) (see
section 13.3(3) of the Criminal Code).
(6) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
96—Entering
certain premises for access to domestic commercial vessel
(1) A marine safety
inspector may enter any premises that are a structure, building or place, and
are not used as a residence, to gain access to a domestic commercial vessel for
a purpose referred to in
section 97(1).
(2)
Subsection (1) does
not authorise a marine safety inspector to enter premises
unless—
(a) if the inspector has been appointed under
section 91—the
inspector has shown his or her identity card if required by the occupier;
or
(b) if the inspector is a member of the Australian Federal Police or of
the police force (however described) of a State or a Territory—the
inspector is in uniform, or has shown his or her police identification if
required by the occupier.
(3) A marine safety
inspector is not required to comply with
subsection (2) if he
or she believes on reasonable grounds that to do so would endanger a
person.
(4) If—
(a) a marine safety inspector does not comply with
subsection (2)
because of
subsection (3);
and
(b) the occupier of the premises is present at the premises,
the inspector must show his or her identity card to the occupier or other
person, as soon as practicable after entering the premises.
Subdivision 2—Powers relating to vessels,
exercisable without consent or warrant
(1) A marine safety
inspector may board a vessel for any of the following purposes:
(a) to ask questions under
section 98;
(b) monitoring purposes;
(c) to issue an improvement notice or prohibition notice to a
person;
(d) if the regulations referred to in
section 138 provide
for a marine safety inspector to issue infringement notices, or notices relating
to the issue of infringement notices—to issue such a notice;
(e) to give a person a notice under
section 101;
(f) to give a direction under
section 109.
(a) the inspector has been appointed under
section 91;
and
(b) the master of the vessel requests the inspector to produce
identification,
the inspector must produce his or her identity card.
(a) the inspector is a member of the Australian Federal Police or of the
police force (however described) of a State or a Territory and is not in
uniform; and
(b) the master of the vessel requests the inspector to produce
identification,
the inspector must produce his or her police identification.
(4) If the marine
safety inspector fails to produce the identity card or police identification,
the inspector must—
(a) leave the vessel; and
(b) not re-board the vessel without producing the identity card or police
identification or wearing police uniform.
(5) A marine safety
inspector is not required to comply with
subsection (2),
(3) or
(4)
if he or she believes on reasonable grounds that to do so would endanger a
person.
(6) If a marine safety inspector does not comply with
subsection (2) or
(3) because of
subsection (5), the
inspector must, as soon as practicable after the request was made, show his or
her identity card or police identification to the master.
98—Requiring
master of a vessel to answer questions about the nature of the
vessel
(1) A marine safety
inspector may require the master of a vessel to—
(a) answer questions put by the inspector about the nature or operations
of the vessel; and
(b) produce any books, records or documents about the nature or operations
of the vessel requested by the inspector.
(2) A person commits an
offence if—
(a) a requirement is made of the person under
subsection (1);
and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
(3)
Subsection (2) does
not apply if the person has a reasonable excuse.
99—Monitoring
domestic commercial vessels
(1) A marine safety
inspector may exercise one or more of the powers (the vessel monitoring
powers) mentioned in
subsection (2) in
relation to a domestic commercial vessel for monitoring purposes, whether or not
the inspector is on board the vessel (and whether or not the inspector has
reasonable grounds for suspecting that there may be evidential material on the
vessel).
Note 1—
For example, a marine safety inspector could require a person on board a
domestic commercial vessel to show him or her the safety equipment on board the
vessel, even if the inspector was in another vessel.
Note 2—
If the inspector has reasonable grounds for suspecting that there may be
evidential material on the vessel,
section 105 gives
the inspector extra powers relating to that material if he or she boards the
vessel with the occupier’s consent or under an enforcement warrant. Also,
section 100 gives
the inspector some powers relating to evidential material found on the vessel by
the exercise of the vessel monitoring powers.
(2) The vessel
monitoring powers are as follows:
(a) the power to search the vessel and any thing on the vessel;
(b) the power to examine or observe any activity conducted on the
vessel;
(c) the power to inspect, examine, take measurements of or conduct tests
on any thing on the vessel;
(d) the power to make any still or moving image or any recording of the
vessel or any thing on the vessel;
(e) the power to inspect any document on the vessel;
(f) the power to take extracts from, or make copies of, any such
document;
(g) the power to take onto the vessel such equipment and materials as the
inspector requires for the purpose of exercising powers in relation to the
vessel;
(h) the power to
require a person on the vessel to show, or demonstrate the operation of,
machinery or equipment on the vessel;
(i) the power to
require a person on the vessel to give a marine safety inspector one or more of
the following:
(i) the person’s name;
(ii) the person’s residential address;
(iii) the person’s date of birth;
(iv) evidence of the person’s identity;
(j) the powers set out in
subsections (3),
(4) and
(5).
Note—
Failure to comply with a requirement is an offence— see
section 102.
(3) The vessel
monitoring powers include the power to require (by any reasonable means)
the master of the vessel to do one or more of the following:
(a) stop or manoeuvre the vessel;
(b) adopt a specified course or speed;
(c) maintain a specified course or speed;
(d) take the vessel to a specified place.
Note—
Failure to comply with a requirement is an offence— see
section 102.
(4) The vessel
monitoring powers include the power, when on the vessel, to operate
electronic equipment on the vessel to see whether—
(a) the equipment; or
(b) a disk, tape or other storage device that—
(i) is on the vessel; and
(ii) can be used with the equipment or is associated with it,
contains information (data) that is relevant for monitoring
purposes.
(5) The vessel
monitoring powers include the following powers exercisable when on or
leaving the vessel in relation to data found in the exercise of the power under
subsections (1),
(2) and
(4):
(a) the power to
operate electronic equipment on the vessel to put the data in documentary form
and remove the documents so produced from the vessel;
(b) the power to
operate electronic equipment on the vessel to transfer the data to a disk, tape
or other storage device that—
(i) is brought onto the vessel for the exercise of the power; or
(ii) is on the vessel and the use of which for that purpose has been
agreed in writing by the occupier of the vessel,
and remove the disk, tape or other storage device from the
vessel.
(6) A marine safety inspector may operate electronic equipment as
mentioned in
subsection (4) or
(5) only if he or she
believes on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
100—Sampling,
securing or seizing things found using vessel monitoring
powers
(1) This section applies if—
(a) a thing is found during the exercise of vessel monitoring powers in
relation to a domestic commercial vessel; and
(b) a marine safety inspector believes on reasonable grounds
that—
(i) the thing is evidential material; and
(ii) any of the powers under this section needs to be exercised without a
warrant, either because of serious and urgent circumstances or because it is not
practicable to obtain a warrant, in order to prevent concealment, loss or
destruction of the evidential material.
Note—
For example, it may be necessary to seize evidential material after a
marine incident in order to prevent destruction of evidential material relevant
to the marine incident.
(2) The marine safety inspector may take a sample of the thing and remove
the sample from the domestic commercial vessel.
(3) The marine safety
inspector may secure the thing for up to 72 hours.
Note—
That period may be extended— see
section 123.
(4) The marine safety inspector may seize the thing.
(5) However, if the thing is equipment, or a disk, tape or other storage
device, that has been operated under
section 99(4), the
marine safety inspector may seize the thing only if—
(a) it is not practicable to put all the evidential material the thing
contains in documentary form as mentioned in
section 99(5)(a) or
to transfer all that evidential material as mentioned in
section 99(5)(b);
or
(b) possession of the equipment or the disk, tape or other storage device
by the occupier of the vessel could constitute an offence against a law of the
Commonwealth, a State or a Territory.
Note—
Division 7
requires marine safety inspectors to deal with seized things in certain
ways.
(6) If the marine safety inspector exercises a power under this section on
the basis that he or she believes on reasonable grounds the power needs to be
exercised without a warrant because it is not practicable to obtain a warrant,
he or she must give the National Regulator a report describing—
(a) the exercise of the power; and
(b) the grounds for his or her belief.
101—Detaining
domestic commercial vessels
(1) A marine safety
inspector may detain a domestic commercial vessel and bring it, or cause it to
be brought, to a port, or to another place that he or she considers appropriate,
if the inspector reasonably suspects that the vessel is, will be or has been
involved in a contravention, either in or outside Australia, of this
Law.
(2) If a marine safety inspector detains a domestic commercial vessel
under
subsection (1), the
inspector must give written notice, within 14 days, to—
(a) the person who holds the certificate of operation for the vessel;
or
(b) if no such person is able to be located—the person who had
possession or control of the vessel immediately before it was
detained.
(3) If the marine safety inspector cannot conveniently give the notice in
person, the inspector may give the notice by fixing the notice to a prominent
part of the vessel.
(4) The notice must—
(a) identify the vessel; and
(b) state that the vessel has been detained; and
(c) specify the reason for this; and
(d) specify contact details of a marine safety inspector who can provide
further information; and
(e) include information about the return of the vessel.
(5) The regulations may make provision for and in relation to the return
of detained vessels, including—
(a) the steps that must be taken to return detained vessels; and
(b) the persons to whom detained vessels are to be returned.
Note—
Division 7 deals
with costs of detention and disposal of vessels that cannot be
returned.
(6) A person commits an offence if—
(a) the person operates a vessel, or causes or permits the operation of a
vessel, that has been detained under
subsection (1);
and
(b) the vessel has not been released from detention; and
(c) a marine safety inspector has not consented to the operation of the
vessel by the person.
Penalty: 120 penalty units.
102—Offence—not
complying with requirement made under section 99
(1) A person commits an
offence if—
(a) a requirement is made of the person—
(i) under
section 99(2)(h) (to
show, or demonstrate the operation of, machinery or equipment on a domestic
commercial vessel); or
(ii) under
section 99(2)(i) (to
give a marine safety inspector the person’s name, the person’s
residential address, the person’s date of birth or evidence of the
person’s identity); or
(iii) under
section 99(3) (to
stop or manoeuvre a vessel, adopt or maintain a specified course or speed or
take a vessel to a specified place); and
(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if the person has a reasonable excuse.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (2) (see
section 13.3(3) of the Criminal Code).
(3) A person commits an
offence if—
(a) a requirement is made of the person under
section 99(2)(i) to
give a marine safety inspector the person’s name, the person’s
residential address, the person’s date of birth or evidence of the
person’s identity; and
(b) the person gives a name, address, date or evidence of the
person’s identity; and
(c) the name, address, date or evidence is false or misleading in a
material particular.
Penalty: 60 penalty units.
(4) An offence against
subsection (1) or
(3) is an offence of
strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Subdivision 3—Powers relating to any premises,
exercisable with consent or warrant
103—Entering
premises with consent or under warrant
(1) A marine safety
inspector may enter any premises for monitoring purposes.
(2) A marine safety
inspector may enter any premises if he or she has reasonable grounds for
suspecting that there may be evidential material on the premises.
(3) Despite
subsections (1) and
(2), a marine safety
inspector is not authorised to enter the premises unless—
(a) the occupier of the
premises has consented to the entry, and—
(i) if the inspector has been appointed under
section 91—the
inspector has shown his or her identity card if required by the occupier;
or
(ii) if the inspector is a member of the Australian Federal Police or of
the police force (however described) of a State or a Territory—the
inspector is in uniform, or has shown his or her police identification if
required by the occupier; or
(b) the entry is made under a warrant.
Note 1—
This does not limit a marine safety inspector’s power to enter
premises under
section 96 or
97— see
clause 108.
Note 2—
section 115 contains
rules about obtaining consent and leaving premises if consent is
withdrawn.
Note 3—
Sections 116,
117,
118,
119 and
120
contain rules relevant to entry under a warrant.
(1) A marine safety
inspector may exercise one or more of the powers (the general monitoring powers)
mentioned in
subsection (2) in
relation to premises for monitoring purposes (whether or not the inspector has
reasonable grounds for suspecting that there may be evidential material on the
premises).
Note—
If the inspector has reasonable grounds for suspecting that there may be
evidential material on the premises,
section 105 gives
the inspector extra powers relating to that material if he or she enters the
premises with the occupier’s consent or under an enforcement
warrant.
(2) The general
monitoring powers are as follows:
(a) the power to search the premises and any thing on the
premises;
(b) the power to examine or observe any activity conducted on the
premises;
(c) the power to inspect, examine, take measurements of or conduct tests
on any thing on the premises;
(d) the power to make any still or moving image or any recording of the
premises or any thing on the premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such
document;
(g) the power to take onto the premises such equipment and materials as
the inspector requires for the purpose of exercising powers in relation to the
premises;
(h) the powers set out in
subsections (3),
(4),
(6) and
(7).
(3) The general
monitoring powers include the power to operate electronic equipment on
the premises to see whether—
(a) the equipment; or
(b) a disk, tape or other storage device that—
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it,
contains information (data) that is relevant for monitoring
purposes.
(4) The general
monitoring powers include the following powers exercisable when on or
leaving premises in relation to data found in the exercise of the power under
subsections (1),
(2) and
(3):
(a) the power to operate electronic equipment on the premises to put the
data in documentary form and remove the documents so produced from the
premises;
(b) the power to operate electronic equipment on the premises to transfer
the data to a disk, tape or other storage device that—
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been
agreed in writing by the occupier of the premises,
and remove the disk, tape or other storage device from the
premises.
(5) A marine safety inspector may operate electronic equipment as
mentioned in
subsection (3) or
(4) only if he or she
believes on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
(6) The general
monitoring powers include the power to secure a thing on premises for up to
72 hours if—
(a) the thing is found during the exercise of general monitoring powers on
the premises; and
(b) a marine safety inspector believes on reasonable grounds
that—
(i) the thing affords evidence of the commission of an offence against
this Law; and
(ii) it is necessary to secure the thing in order to prevent it from being
concealed, lost or destroyed before a warrant to seize the thing is obtained;
and
(iii) it is necessary to secure the thing without a warrant because the
circumstances are serious and urgent.
Note—
The period for which the thing is secured may be extended— see
section 123.
(1) If a marine safety
inspector has reasonable grounds for suspecting that there may be evidential
material on any premises, the inspector may exercise the following powers (the
enforcement powers) in relation to the premises—
(a) if entry to the
premises is with the occupier’s consent—the power to search the
premises and any thing on the premises for the evidential material the inspector
has reasonable grounds for suspecting may be on the premises;
(b) if entry to the
premises is under an enforcement warrant—
(i) the power to search the premises and any thing on the premises for the
kind of evidential material specified in the warrant; and
(ii) the power to seize evidential material of that kind if the inspector
finds it on the premises;
(c) the power to inspect, examine, take measurements of, conduct tests on
or take samples of evidential material referred to in
paragraph (a) or
(b);
(d) the power to make any still or moving image or any recording of the
premises or evidential material referred to in
paragraph (a)
or
(b);
(e) the power to take onto the premises such equipment and materials as
the inspector requires for the purpose of exercising powers in relation to the
premises;
(f) the power to require a person on the premises to demonstrate the
operation of machinery or equipment on the premises;
(g) the powers set out in
subsections (2),
(3) and
(6).
Note—
Division 7
requires marine safety inspectors to deal with seized things in certain
ways.
(2) The
enforcement powers include the power to operate electronic
equipment on the premises to see whether—
(a) the equipment; or
(b) a disk, tape or other storage device that—
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it,
contains evidential material referred to in
subsection (1)(a) or
(b).
(3) The
enforcement powers include the following powers exercisable when
on or leaving premises in relation to evidential material described in
subsection (2) found
in the exercise of the power under that subsection—
(a) if entry to the
premises is under an enforcement warrant—the power to seize the equipment
and the disk, tape or other storage device referred to in that
subsection;
(b) the power to
operate electronic equipment on the premises to put the evidential material in
documentary form and remove the documents so produced from the
premises;
(c) the power to
operate electronic equipment on the premises to transfer the evidential material
to a disk, tape or other storage device that—
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been
agreed, in writing, by the occupier of the premises,
and remove the disk, tape or other storage device from the
premises.
(4) A marine safety inspector may operate electronic equipment as
mentioned in
subsection (2) or
(3) only if he or she
believes on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
(5) A marine safety inspector may seize equipment or a disk, tape or other
storage device as mentioned in
subsection (3)(a)
only if—
(a) it is not practicable to put the evidential material in documentary
form as mentioned in
subsection (3)(b) or
to transfer the evidential material as mentioned in
subsection (3)(c);
or
(b) possession of the equipment or the disk, tape or other storage device
by the occupier could constitute an offence against a law of the Commonwealth, a
State or a Territory.
(a) entry to the premises is under an enforcement warrant; and
(b) the marine safety inspector, in the course of searching for the kind
of evidential material specified in the warrant, finds a thing that the
inspector believes on reasonable grounds to be other evidential material;
and
(c) the inspector believes on reasonable grounds that it is necessary to
seize the thing in order to prevent its concealment, loss or
destruction,
then the enforcement powers include seizing the
thing.
106—Requiring
persons on premises entered under warrant to answer questions and produce
documents
(1) A marine safety
inspector who is on or in premises that he or she has entered under a warrant
may require anyone on or in the premises to—
(a) answer any questions put by the inspector; and
(b) produce any books, records or documents requested by the
inspector.
(2) A person commits an
offence if—
(a) a requirement is made of the person under
subsection (1);
and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
(3)
Subsection (2) does
not apply if the person has a reasonable excuse.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (3) (see
section 13.3(3) of the Criminal Code).
107—Using
force in executing a warrant
In executing a warrant, a marine safety inspector may use such force
against persons and things as is necessary and reasonable in the
circumstances.
108—Relationship
with Subdivision B
(1) This Subdivision does not limit Subdivision B.
(2) Subdivision B does not prevent this Subdivision from applying to
premises that are domestic commercial vessels.
Division 3—Other powers
(1) If a marine safety
inspector believes on reasonable grounds that—
(a) a person is contravening a provision of this Law in respect of a
thing; or
(b) at least one of the following applies—
(i) it is necessary to exercise powers under this section in order to
protect the safety of people or to protect the environment;
(ii) it is desirable in the public interest for the inspector to exercise
powers under this section,
the inspector may give the person a direction requiring the person, within
the time specified in the direction, to take such steps in relation to the thing
as are reasonable in the circumstances.
Note—
For example, a marine safety inspector could give a direction that a person
not operate an unsafe vessel.
(2) The direction must be given in writing, unless the marine safety
inspector believes there is an urgent need to protect the safety of people or to
protect the environment.
(3) A person commits an
offence if he or she does not take the steps specified in a direction under
subsection (1)
within the time specified in the direction.
Penalty: 60 penalty units.
(4) An offence against
subsection (3) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
(5) If the person does
not take the steps specified in the direction within the time specified in the
direction, the inspector may arrange for those steps to be taken.
(6) If the National Regulator incurs costs because of arrangements made by
the inspector under
subsection (5), the
person is liable to pay to the National Regulator an amount equal to the costs,
and the amount may be recovered by the National Regulator as a debt due to the
National Regulator in a court of competent jurisdiction.
(7) A time specified in a direction under
subsection (1)
must be reasonable having regard to the circumstances.
110—Issuing
improvement notices
(1) If a marine safety
inspector believes on reasonable grounds that a person—
(a) is contravening a provision of this Law; or
(b) has contravened a provision of this Law and is likely to contravene
that provision again,
the inspector may issue an improvement notice, in writing, to the
person.
(2) The notice must—
(a) specify the contravention of this Law that the marine safety inspector
believes is occurring or is likely to occur; and
(b) set out the reasons for that belief; and
(c) specify a period within which the person is to take the action
necessary to prevent any further contravention, or to prevent the likely
contravention, as the case may be.
(3) The period specified in the notice must be reasonable.
(4) The notice may specify action that the person is to take, or is not to
take, during the period specified in the notice.
(5) Before the end of the specified period, the marine safety inspector
may extend that period in writing.
(6) The person must
ensure that the notice is complied with to the extent that it relates to any
matter over which the person has control.
(7) A person subject to
a requirement under
subsection (6)
commits an offence if an act or omission of the person breaches the
requirement.
Penalty: 60 penalty units.
(8) An offence against
subsection (7) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
111—Issuing
prohibition notices
(1) This section
applies if a marine safety inspector believes on reasonable grounds
that—
(a) an activity is occurring in relation to a domestic commercial vessel
that involves or will involve a risk to the safety of a person or a serious risk
to the environment; or
(b) an activity may occur in relation to a domestic commercial vessel
that, if it occurs, will involve a risk to the safety of a person or a serious
risk to the environment.
(2) The marine safety
inspector may issue a prohibition notice to the responsible person in relation
to the domestic commercial vessel. For this purpose, the responsible person
is—
(a) the master of the vessel; or
(b) if the inspector cannot locate the master—
(i) the person who holds the certificate of operation for the vessel;
or
(ii) if the inspector cannot locate that person—the person who has
possession or control of the vessel.
(3) The notice must—
(a) specify the activity the marine safety inspector believes involves or
will involve the risk to safety or the environment, and set out the reasons for
that belief; and
(b) either—
(i) direct the responsible person to ensure that the activity is not
engaged in; or
(ii) direct the responsible person to ensure that the activity is not
engaged in a specified manner.
Note—
For example, a notice could specify that a person not operate an unsafe
vessel.
(4) A specified manner may relate to any one or more of the
following:
(a) any vessel, or part of a vessel, in relation to which the activity is
not to be engaged in;
(b) any thing that is not to be used in connection with the
activity;
(c) any procedure that is not to be followed in connection with the
activity.
(5) The notice ceases to have effect when a marine safety inspector
notifies the responsible person that the inspector is satisfied that the
responsible person has taken adequate action to remove the risk to safety or the
environment.
(6) The notice may specify action that may be taken to satisfy a marine
safety inspector that adequate action has been taken to remove the risk to
safety or the environment.
(7) If a marine safety
inspector is satisfied that action taken by the responsible person to remove the
risk to safety or the environment is not adequate, the inspector must inform the
person accordingly.
(8) In making a decision under
subsection (7), a
marine safety inspector may exercise any of the vessel monitoring powers and
general monitoring powers that the inspector considers necessary for the
purposes of making the decision.
(9) A person issued
with a notice under
subsection (2)
commits an offence if an act or omission of the person breaches the
notice.
Penalty: 60 penalty units.
(10) An offence against
subsection (9) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
112—Copies
of notices to be displayed and distributed
(1) If a person (the
recipient) is given an improvement notice under
section 110(1)
or a prohibition notice under
section 111(2) in
relation to a vessel—
(a) the recipient must
cause a copy of the notice to be displayed—
(i) in a place directed by the marine safety inspector who issued the
notice; or
(ii) if the marine safety inspector does not give a direction—in a
prominent place on or near the vessel; and
(b) the marine safety inspector who issued the notice must give a copy of
the notice to—
(i) the master of the vessel; and
(ii) the person who holds the certificate of operation for the vessel or,
if no such person is able to be located, the person who had possession or
control of the vessel immediately before the notice was issued.
(2) A person required
by
subsection (1)(a) to
display a notice commits an offence if an act or omission of the person
contravenes the requirement.
Penalty: 60 penalty units.
(3) An offence against
subsection (2) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
113—Notices
not to be tampered with or removed
(a) tamper with a notice while it is displayed under
section 112;
or
(b) remove a notice that has been displayed before the notice has ceased
to have effect.
Penalty: 60 penalty units.
(2)
subsection (1) does
not apply if the person has a reasonable excuse.
Note—
A defendant bears an evidential burden in relation to the matter in
subsection (2) (see
section 13.3(3) of the Criminal Code).
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 4—Persons assisting marine safety
inspectors
114—Persons
assisting marine safety inspectors
(1) A marine safety inspector may be assisted by other persons in
exercising powers or performing functions or duties under this Part, if that
assistance is necessary and reasonable. A person giving such assistance is a
person assisting the inspector.
(2) A person assisting
the marine safety inspector—
(a) may enter the premises; and
(b) may exercise powers and perform functions and duties under this Part;
and
(c) must do so in accordance with a direction given by the inspector to
the person assisting.
(3) In executing a warrant, a person assisting the marine safety inspector
may use such force against things as is necessary and reasonable in the
circumstances.
(4) A power exercised by a person assisting the marine safety inspector as
mentioned in
subsection (2) is
taken for all purposes to have been exercised by the inspector.
(5) A function or duty performed by a person assisting the marine safety
inspector as mentioned in
subsection (2) is
taken for all purposes to have been performed by the inspector.
Division 5—Obligations and incidental powers
of marine safety inspectors
(1) A marine safety inspector must, before obtaining the consent of an
occupier of premises for the purposes of
section 103(3)(a),
inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be
expressed to be limited to entry during a particular period. If so, the consent
has effect for that period unless the consent is withdrawn before the end of
that period.
(4) A consent that is not limited as mentioned in
subsection (3) has
effect until the consent is withdrawn.
(5) If a marine safety inspector entered premises under
section 103 because
of the consent of the occupier of the premises, the inspector, and any person
assisting the inspector, must leave the premises if the consent ceases to have
effect.
116—Announcement
before entry under warrant
(1) A marine safety
inspector must, before entering premises under a warrant—
(a) announce that he or she is authorised to enter the premises;
and
(b) if the inspector was appointed under
section 91—show
his or her identity card to the occupier of the premises if the occupier is
present at the premises; and
(c) if the inspector is a member of the Australian Federal Police or of
the police force (however described) of a State or a Territory and is not in
uniform—show his or her police identification to the occupier of the
premises if the occupier is present at the premises; and
(d) give any person at the premises an opportunity to allow entry to the
premises.
(2) However, a marine
safety inspector is not required to comply with
subsection (1)
if he or she believes on reasonable grounds that immediate entry to the premises
is required—
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant is not
frustrated.
(3) If—
(a) a marine safety inspector does not comply with
subsection (1)because
of
subsection (2);
and
(b) the occupier of the premises is present at the premises,
the inspector must, as soon as practicable after entering the premises,
show his or her identity card or police identification to the
occupier.
117—Marine
safety inspector to be in possession of warrant
If a warrant is being executed in relation to premises, a marine safety
inspector executing the warrant must be in possession of the warrant or a copy
of the warrant.
118—Details
of warrant etc to be given to occupier
if—
(a) a warrant is being executed in relation to premises; and
(b) the occupier of the premises is present at the premises,
a marine safety inspector executing the warrant must, as soon as
practicable—
(c) make a copy of the warrant available to the occupier (which need not
include the signature of the magistrate who issued it); and
(d) inform the occupier of the rights and responsibilities of the occupier
under
Division 6.
119—Completing
execution of warrant after temporary cessation
(1) This section applies if a marine safety inspector, and all persons
assisting, who are executing a warrant in relation to premises temporarily cease
its execution and leave the premises.
(2) The marine safety
inspector, and persons assisting, may complete the execution of the warrant
if—
(a) the warrant is still in force; and
(b) the inspector and
persons assisting are absent from the premises—
(i) for not more than 1 hour; or
(ii) if there is an
emergency—for not more than 12 hours or such longer period as allowed by a
magistrate under
subsection (5);
or
(iii) for a longer period if the occupier of the premises consents in
writing.
(3) A marine safety
inspector, or person assisting, may apply to a magistrate for an extension of
the 12 hour period mentioned in
subsection (2)(b)(ii)
if—
(a) there is an emergency; and
(b) the inspector or person assisting believes on reasonable grounds that
the inspector and the persons assisting will not be able to return to the
premises within that period.
(4) If it is practicable to do so, before making the application, the
marine safety inspector or person assisting must give notice to the occupier of
the premises of his or her intention to apply for an extension.
(5) A magistrate may
extend the period during which the marine safety inspector and persons assisting
may be away from the premises if—
(a) an application is made under
subsection (3);
and
(b) the magistrate is satisfied, by information on oath or affirmation,
that there are exceptional circumstances that justify the extension;
and
(c) the extension would not result in the period ending after the warrant
ceases to be in force.
120—Completing
execution of warrant stopped by court order
A marine safety inspector, and any persons assisting, may complete the
execution of a warrant that has been stopped by an order of a court
if—
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is revoked or
reversed.
121—Expert
assistance to operate electronic equipment
(1) This section applies to premises to which a warrant relates.
(2) If a marine safety
inspector believes on reasonable grounds that—
(a) there is on the premises information (data) relevant to the monitoring
purposes or determining whether there is evidential material on the premises;
and
(b) the data may be accessible by operating electronic equipment on the
premises; and
(c) expert assistance is required to operate the equipment; and
(d) if he or she does not take action under this subsection, the data may
be destroyed, altered or otherwise interfered with,
he or she may do whatever is necessary to secure the equipment for up to 72
hours, whether by locking it up, placing a guard or other means.
(3) The marine safety inspector must give notice to the occupier of the
premises of his or her intention to secure the equipment and of the fact that
the equipment may be secured for up to 72 hours.
Note—
That period may be extended— see
section 123.
122—Compensation
for damage to electronic equipment
(a) as a result of electronic equipment being operated as mentioned in
this Part—
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because—
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The National Regulator must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the damage or
corruption as the National Regulator and the owner or user agree on.
(3) However, if the owner or user and the National Regulator fail to
agree, the owner or user may institute proceedings in a court of competent
jurisdiction for such reasonable amount of compensation as the court
determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees or
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) For the purposes of
subsection (1)—
damage , in relation to data, includes damage by erasure of
data or addition of other data.
123—Extending
period for which something is secured
(1) If a marine safety inspector believes on reasonable grounds that a
thing needs to be secured under
section 100(3),
104(6) or
121(2) for more than 72
hours, he or she may apply to a magistrate for an extension of that
period.
(2) The marine safety inspector must give notice to the occupier of the
premises on which the thing is secured of the inspector’s intention to
apply for an extension. The occupier is entitled to be heard in relation to that
application.
(3) The provisions of this Part relating to the issue of warrants apply,
with such modifications as are necessary, to the issue of an
extension.
(4) The 72-hour period may be extended more than once.
124—Offence—interfering
with securing of thing
A person commits an offence if—
(a) a marine safety inspector is securing, or has secured, a thing under
section 100(3),
104(6) or
121(2); and
(b) the person interferes with the securing of the thing, or the secured
thing; and
(c) the period for which the thing is secured has not ended.
Penalty: 500 penalty units.
Division 6—Occupier’s rights and
responsibilities
125—Occupier
entitled to observe execution of warrant
(1) If—
(a) a warrant is being executed in relation to premises; and
(b) the occupier of the premises is present at the premises,
the occupier is entitled to observe the execution of the warrant.
(2) The right to observe the execution of the warrant ceases if the
occupier impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or
more areas of the premises at the same time.
126—Occupier
to provide marine safety inspector with facilities and
assistance
(1) The occupier of
premises to which a warrant relates must provide—
(a) a marine safety inspector executing the warrant; and
(b) any person assisting the inspector,
with all reasonable facilities and assistance for the effective exercise of
their powers.
(2) A person subject to
subsection (1)
commits an offence if the person fails to comply with that subsection.
Penalty: 30 penalty units.
(3) An offence against
subsection (2) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 7—General provisions relating to
seizure and detention
127—Copies
of seized things to be provided
(1) This section applies if a marine safety inspector seizes one or more
of the following from the premises under this Part:
(a) a document, film, computer file or other thing that can be readily
copied;
(b) a storage device, the information in which can be readily
copied.
(2) The occupier of the premises may request the marine safety inspector
to give a copy of the thing or the information to the occupier.
(3) The marine safety inspector must comply with the request as soon as
practicable after the seizure.
(4) However, the marine safety inspector is not required to comply with
the request if possession of the document, film, computer file, thing or
information by the occupier could constitute an offence against a law of the
Commonwealth, a State or a Territory.
128—Receipts
for seized things
(1) If a thing is seized under this Part, a marine safety inspector must
provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the one
receipt.
(1) The marine safety
inspector must take reasonable steps to return a thing seized under this Part
when the earliest of the following happens:
(a) the reason for the thing’s seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60
days after the thing’s seizure ends.
Note—
See
subsections (2) and
(3) for exceptions to
this rule.
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing—
(i) is forfeited or forfeitable to the Commonwealth; or
(ii) is the subject of a dispute as to ownership.
(3) The marine safety
inspector is not required to take reasonable steps to return a thing because of
subsection (1)(c)
if—
(a) proceedings in respect of which the thing may afford evidence were
instituted before the end of the 60 days and have not been completed (including
an appeal to a court in relation to those proceedings); or
(b) the thing may continue to be retained because of an order under
section 130;
or
(c) the Commonwealth, the National Regulator or a marine safety inspector
is otherwise authorised (by a law, or an order of a court, of the Commonwealth,
a State or a Territory) to retain, destroy, dispose of or otherwise deal with
the thing.
(4) Return of thing
A thing that is required to be returned under this section must be returned
to the person from whom it was seized (or to the owner if that person is not
entitled to possess it).
130—Magistrate
may permit a thing to be retained
(1) A marine safety inspector may apply to a magistrate for an order
permitting the retention of the thing for a further period if—
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a
magistrate under this section,
proceedings in respect of which the thing may afford evidence have not been
instituted.
(2) If the magistrate is satisfied that it is necessary for the thing to
continue to be retained—
(a) for the purposes of an investigation in respect of an offence against
this Law; or
(b) to enable evidence of an offence against this Law to be secured for
the purposes of a prosecution,
the magistrate may order that the thing may continue to be retained for a
period specified in the order (which must not exceed 3 years).
(3) Before making the application, the marine safety inspector
must—
(a) take reasonable steps to discover who has an interest in the retention
of the thing; and
(b) if it is practicable to do so, notify each person whom the inspector
believes to have such an interest of the proposed application.
(1) The National
Regulator is liable to pay to the owner of a domestic commercial vessel a
reasonable amount of compensation—
(a) for the costs of, and incidental to, the detention of the vessel;
and
(b) for any loss or damage incurred by the owner as a result of the
detention of the vessel,
if there was no reasonable or probable cause for the detention of the
vessel.
(a) a domestic commercial vessel is detained under this Division;
and
(b) the National Regulator incurs costs in connection with the detention
of the vessel; and
(c) the detention was reasonable in the circumstances,
the owner of the vessel is liable to pay to the National Regulator
compensation of a reasonable amount in respect of the detention of the
vessel.
(3) If the National Regulator and the owner of the vessel do not agree on
the amount of compensation payable under
subsection (1) or
(2), the National
Regulator or the owner may institute proceedings in a court of competent
jurisdiction for the recovery of such reasonable amount of compensation as the
court determines.
132—Disposal
of seized things and detained vessels
(1) The National Regulator may dispose of a thing seized, or a vessel
detained, under this Part if—
(a) the National Regulator has—
(i) in the case of a seized thing—taken reasonable steps to return
the thing to a person; or
(ii) in the case of a detained vessel—taken the steps required by
the regulations to return the vessel to a person; and
(b) one of the following applies:
(i) the National Regulator has been unable to locate the person, despite
making reasonable efforts;
(ii) the person has refused to take possession of the thing or
vessel;
(iii) the National Regulator has contacted the person about the return of
the thing or vessel, and the person has not refused to take possession of the
thing or vessel, but has not taken possession of the thing or vessel within 3
months of the contact.
(2) The National Regulator may dispose of the thing or vessel in such
manner as the National Regulator thinks appropriate.
133—Compensation
for acquisition of property
(1) If the operation of
section 132 would
result in an acquisition of property from a person otherwise than on just terms,
the National Regulator is liable to pay a reasonable amount of compensation to
the person.
(2) If the National Regulator and the person do not agree on the amount of
the compensation, the person may institute proceedings in a court of competent
jurisdiction for the recovery from the National Regulator of such reasonable
amount of compensation as the court determines.
Division 8—Warrants
(1) A marine safety inspector may apply to a magistrate for a warrant
under this section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that it is reasonably necessary that one
or more marine safety inspectors should have access to the premises for
monitoring purposes.
(3) However, the magistrate must not issue the warrant unless the marine
safety inspector or some other person has given to the magistrate, either orally
or by affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
(4) The warrant must—
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose for which the warrant is issued; and
(d) authorise one or more marine safety inspectors (whether or not named
in the warrant) from time to time while the warrant remains in
force—
(i) to enter the premises; and
(ii) to exercise the powers set out in
sections 103,
104,
106 and
107, and
Division 5, in relation to
the premises; and
(e) state whether entry is authorised to be made at any time of the day or
during specified hours of the day; and
(f) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to be in force.
(1) A marine safety inspector may apply to a magistrate for a warrant
under this section in relation to premises.
(2) The magistrate may
issue the warrant if the magistrate is satisfied, by information on oath or
affirmation, that there are reasonable grounds for suspecting that there is, or
there may be within the next 72 hours, evidential material on the
premises.
(3) However, the magistrate must not issue the warrant unless the marine
safety inspector or some other person has given to the magistrate, either orally
or by affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
(4) The warrant must—
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) specify the offence or offences to which the warrant relates;
and
(d) specify the kind of evidential material that is to be searched for
under the warrant; and
(e) name one or more marine safety inspectors; and
(f) authorise the inspector or inspectors so named—
(i) to enter the premises; and
(ii) to exercise the powers set out in
sections 103,
105,
106 and
107,
Division 5 and
section 130 in
relation to the premises; and
(g) state whether the entry is authorised to be made at any time of the
day or during specified hours of the day; and
(h) specify the day (not more than 1 week after the issue of the warrant)
on which the warrant ceases to be in force.
136—Enforcement
warrants by telephone, fax etc
(1) A marine safety inspector may apply to a magistrate by telephone, fax
or other electronic means for a warrant under
section 135 in
relation to premises—
(a) in an urgent case; or
(b) if the inspector believes, on reasonable grounds, that the delay that
would occur if an application were made in person would frustrate the effective
execution of the warrant.
(2) The magistrate may require communication by voice to the extent that
it is practicable in the circumstances.
(3) An application
under this section must include all information (of the kind mentioned in
section 135(2)) in
relation to the premises that sets out the grounds on which the warrant is
sought. If it is necessary to do so, the inspector may apply for the warrant
before the information is sworn or affirmed.
(4) If the magistrate is satisfied—
(a) after considering the information; and
(b) after receiving such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the warrant is being
sought,
that there are reasonable grounds for issuing the warrant, the magistrate
may complete and sign the same warrant that the magistrate would issue under
section 135 if the
application had been made under that section.
(5) If the magistrate completes and signs the warrant, the magistrate must
inform the inspector, by telephone, fax or other electronic means,
of—
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was
signed.
(6) The marine safety
inspector must then complete a form of warrant in the same terms as the warrant
completed and signed by the magistrate, stating on the form—
(a) the name of the magistrate; and
(b) the day on which, and the time at which, the warrant was
signed.
(7) The marine safety
inspector must also, not later than the day after the earlier of the following
days:
(a) the day on which the warrant ceased to be in force;
(b) the day of execution of the warrant,
send to the magistrate—
(c) the form of warrant completed by the inspector; and
(d) the information referred to in
subsection (3),
which must have been duly sworn or affirmed.
(8) The magistrate must attach to the documents provided under
subsection (7) the
warrant signed by the magistrate.
(9) A form of warrant duly completed under
subsection (6)
is authority for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If—
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence,
the court must assume, unless the contrary is proved, that the exercise of
the power was not authorised by such a warrant.
137—Offence
relating to warrants by telephone, fax etc
A marine safety inspector commits an offence if—
(a) the inspector states in a document that purports to be a form of
warrant under
section 136 the name
of a magistrate, unless that magistrate signed the warrant; or
(b) the inspector states on a form of warrant under that section a matter
that, to the inspector’s knowledge, departs in a material particular from
the terms of the warrant signed by the magistrate under that section;
or
(c) the inspector purports to execute, or present to another person, a
document that purports to be a form of warrant under that section that the
inspector knows—
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms of a warrant signed
by a magistrate under that section; or
(d) the inspector gives to a magistrate a form of warrant under that
section that is not the form of warrant that the inspector purported to
execute.
Penalty: Imprisonment for 2 years.
Part 7—Infringement
notices
(1) The regulations may make provision for and in relation to enabling a
person who is alleged to have committed an offence against this Law to pay a
penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must equal one fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
Part 8—General matters
Division 1—Review of
decisions
The following decisions by the National Regulator are reviewable
decisions:
(a) to refuse to issue a certificate under the following:
(i)
section 38(1);
(ii)
section 48(1);
(iii)
section 60(1);
(b) to refuse to issue a unique identifier under
section 31(1);
(c) to impose a condition on a certificate under the following:
(i)
section 38(3)(b);
(ii)
section 48(4)(b);
(iii)
section 60(3)(b);
(d) to refuse to vary a certificate under the following:
(i)
section 40(1);
(ii)
section 50(1);
(iii)
section 62(1);
(e) to vary a certificate under the following:
(i)
section 40(2);
(ii)
section 50(2);
(iii)
section 62(2);
(f) to refuse to suspend a certificate under the following:
(i)
section 41(1);
(ii)
section 51(1);
(iii)
section 63(1);
(g) to suspend a certificate under the following:
(i)
section 41(2);
(ii)
section 51(2);
(iii)
section 63(2);
(h) to refuse to revoke a certificate under the following:
(i)
section 42(1);
(ii)
section 52(1);
(iii)
section 64(1);
(i) to revoke a certificate under the following:
(i)
section 42(2);
(ii)
section 52(2);
(iii)
section 64(2);
(j) to refuse to recognise a certificate under
section 73(1);
(k) to specify a condition under
section 73(3);
(l) to give a direction under
section 109(1);
(m) to issue a provisional improvement notice under
section 110(1);
(n) to issue prohibition notice under
clause 111(1);
(o) to detain a vessel under
section 101(1);
(p) to refuse to grant an exemption under
section 143,
other than an exemption granted on the initiative of the National
Regulator;
(q) to impose a condition on an exemption under
section 143, other
than an exemption granted on the initiative of the National Regulator.
140—Internal
review of reviewable decisions
(1) The National
Regulator must, as soon as practicable after a reviewable decision is made in
relation to a person, give a written notice to the person
containing—
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) a statement setting out particulars of the person’s right to
have the decision reviewed under this section.
(2) A person to whom a reviewable decision referred to in
subsection (1)
relates may apply to the National Regulator for review of the
decision.
(3) An application for
review must—
(a) be in the form approved by the National Regulator; and
(b) contain the information required by the regulations; and
(c) be made within 30 days after the day on which the written notice of
the decision was given to the applicant, or within such period (if any) as the
National Regulator, either before or after the end of the 30 day period,
allows.
(4) The National Regulator must, on receiving an application under
subsection (3) for
review of a reviewable decision, cause the decision to be reviewed by a person
to whom the National Regulator power under this section is delegated, being a
person who—
(a) was not involved in making the decision; and
(b) occupies a position that is senior to that occupied by any person
involved in making the decision.
(5) A person who
reviews a reviewable decision under this section may—
(a) make a decision affirming, varying or revoking the reviewable
decision; and
(b) if the person revokes the decision—make such other decision as
the person thinks appropriate.
(6) A failure to comply with the requirements of
subsection (1) in
relation to a decision does not affect the validity of the decision.
141—Applications
for AAT review
Applications may be made to the Administrative Appeals Tribunal for review
of a decision under
section 140(5).
Note—
The Administrative Appeals Tribunal Act 1975 of the Commonwealth
provides for the manner of applying for review, etc
142—Review
of decisions made under the regulations
The regulations may provide for—
(a) internal review of decisions made under the regulations; and
(b) the making of applications to the Administrative Appeals Tribunal for
review of decisions under the regulations.
Division 2—Exemptions
(1) The National
Regulator may exempt from the application of this Law, or specified provisions
of this Law—
(a) a specified vessel or class of vessels; or
(b) a specified person or class of persons.
(2) The exemption may be confined to one or both of the
following:
(a) one or more specified periods;
(b) one or more specified operations.
(3) For the purposes of an exemption for one or more specified periods, of
a vessel that is specified or is in a specified class, the periods may be
specified as periods for which a specified use is being made of the
vessel.
(4) An exemption may be granted—
(a) on application in accordance with the regulations by a person;
or
(b) on the initiative of the National Regulator.
(5) An exemption is
subject to such conditions (if any) as are specified in the instrument of
exemption.
(6) The National Regulator must not grant an exemption, or impose
conditions under
subsection (5),
unless the National Regulator is satisfied that the exemption concerned, taken
together with the conditions to which it is subject, will not jeopardise the
safety of a vessel or a person on board a vessel.
(7) An exemption granted under
subsection (1) is
not a legislative instrument.
144—Offence
of breaching a condition of exemption (owner)
(1) The owner of a
domestic commercial vessel commits an offence if—
(a) an exemption under
section 143 in
relation to the vessel is subject to a condition; and
(b) the owner breaches, or causes or permits another person to breach, the
condition.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
145—Offence
of breaching a condition of exemption (master)
(1) The master of a
domestic commercial vessel commits an offence if—
(a) an exemption under
section 143 in
relation to the vessel is subject to a condition; and
(b) the master breaches, or causes or permits another person to breach,
the condition.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
146—Offence
of breaching a condition of exemption (all persons)
(1) A person commits an
offence if—
(a) an exemption under
section 143 in
relation to the person is subject to a condition; and
(b) the person breaches the condition.
Penalty: 60 penalty units.
(2) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
Division 3—Application of National Law to
certain bodies
(1) This Law applies to a partnership as if it were a person, but with the
changes set out in this section.
(2) An obligation that would otherwise be imposed on the partnership by
this Law is imposed on each partner instead, but may be discharged by any of the
partners.
(3) An offence against
this Law that would otherwise be committed by the partnership is taken to have
been committed by each partner.
(4) A partner does not
commit an offence because of
subsection (3) if
the partner—
(a) does not know of the circumstances that constitute the contravention
of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps to correct
the contravention as soon as possible after the partner becomes aware of those
circumstances.
Note—
A defendant bears an evidential burden in relation to the matters in
subsection (4) (see
section 13.3(3) of the Criminal Code).
(5) For the purposes of this Law, a change in the composition of a
partnership does not affect the continuity of the partnership.
148—Treatment
of unincorporated associations
(1) This Law applies to an unincorporated association as if it were a
person, but with the changes set out in this section.
(2) An obligation that would otherwise be imposed on the association by
this Law is imposed on each member of the association’s committee of
management instead, but may be discharged by any of the members.
(3) An offence against
this Law that would otherwise be committed by the association is taken to have
been committed by each member of the association’s committee of
management.
(4) A member of the
association’s committee of management does not commit an offence because
of
subsection (3) if
the member—
(a) does not know of the circumstances that constitute the contravention
of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps to correct
the contravention as soon as possible after the member becomes aware of those
circumstances.
Note—
A defendant bears an evidential burden in relation to the matters in
subsection (4) (see
section 13.3(3) of the Criminal Code).
149—Treatment
of trusts with multiple trustees
(1) If a trust has 2 or more trustees, this Law applies to the trust as if
it were a person, but with the changes set out in this section.
Note—
A trust may be an owner of a vessel (see the definitions of
entity and owner in
section 6).
(2) An obligation that would otherwise be imposed on the trust by this Law
is imposed on each trustee instead, but may be discharged by any of the
trustees.
(3) An offence against
this Law that would otherwise be committed by the trust is taken to have been
committed by each trustee.
(4) A trustee does not
commit an offence because of
subsection (3) if
the trustee—
(a) does not know of the circumstances that constitute the contravention
of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps to correct
the contravention as soon as possible after the trustee becomes aware of those
circumstances.
Note—
A defendant bears an evidential burden in relation to the matters in
subsection (4) (see
section 13.3(3) of the Criminal Code).
Division 4—Fees
150—Charging
of fees by the National Regulator
(1) The National
Regulator may charge such fees as are prescribed by the regulations for things
done by the National Regulator under this Law.
(2) The fee is payable to the National Regulator.
(3) The fee must not be such as to amount to taxation.
(4) If the fee is unpaid, it is a debt due to the National Regulator and
is recoverable in a court of competent jurisdiction.
151—Charging
of fees by accredited persons
(1) An accredited person who—
(a) is not an officer or employee of the Commonwealth, a State or the
Northern Territory, or of an agency of the Commonwealth, a State or the Northern
Territory; or
(b) is such an officer or employee, but does a thing under this Law other
than in that capacity,
may charge another person the fee agreed between the accredited person and
the other person for a thing done by the accredited person under this
Law.
(2) The fee is payable to the accredited person.
(3) The fee must not be such as to amount to taxation.
(4) If the fee is unpaid, it is a debt due to the accredited person and is
recoverable in a court of competent jurisdiction.
Division 5—Disclosure of
information
152—Disclosure
of information by certain persons to the National Regulator
Any of the following may disclose to the National Regulator information
(including personal information) that may be relevant to the administration of
this Law:
(a) a delegate or sub-delegate of the National Regulator;
(b) a maritime safety inspector;
(c) an accredited person;
(d) an approved training organisation.
Note—
Section 11 of the Australian Maritime Safety Authority Act 1990 of
the Commonwealth authorises the National Regulator to disclose information
(including personal information).
Division 6—Immunity from
suit
(1) Criminal or civil proceedings do not lie against—
(a) the National Regulator; or
(b) a member of the staff of the National Regulator; or
(c) a delegate or sub-delegate of the National Regulator; or
(d) an agency of which such a delegate or sub-delegate is an employee;
or
(e) an employee or contractor of such an agency; or
(f) a marine safety inspector,
because of an act done or omitted to be done in the exercise of any power
conferred on the National Regulator or a marine safety inspector by or under
this Law.
(2) Criminal or civil
proceedings do not lie against a person because of an act done, or omitted to be
done, in compliance with a direction given under this Act.
(3)
Subsection (2) does
not apply to the extent to which it is inconsistent with an international
agreement to which Australia is a party.
(4) To avoid doubt,
subsection (2) does
not apply to proceedings under
section 133.
Division 7—Matters relating to evidence and
proceedings, etc
154—National
Regulator may require certain information
(1) This section applies if an offence against this Law (the
relevant offence) in relation to a domestic commercial vessel is
alleged to have been committed by—
(a) the master of the vessel; or
(b) the owner of the vessel.
(2) The National
Regulator may, within 30 days after the conduct constituting the relevant
offence, give a written notice—
(a) if the relevant offence is alleged to have been committed by the
master of the vessel—to the owner of the vessel, requiring the owner to
inform the National Regulator of the name and address of the person who was the
master of the vessel at the time of the conduct constituting the relevant
offence; or
(b) if the relevant offence is alleged to have been committed by the owner
of the vessel—to the master of the vessel, requiring the master to inform
the National Regulator of the name and address of the person who was the owner
of the vessel at the time of the conduct constituting the relevant
offence.
(3) The notice must—
(a) specify the relevant offence; and
(b) state the effect of
section 155.
155—Offence
not to give information
(1) A person commits an
offence if—
(a) the person is given a notice under
section 154(2);
and
(b) the person does not, within 28 days of the giving of the notice, give
the information specified in the notice to the National Regulator.
Penalty: 60 penalty units.
(2)
Subsection (1) does
not apply if the person satisfies the National Regulator that, at the time of
the conduct constituting the relevant offence, the vessel had been stolen or
wrongfully taken.
(3) An offence against
subsection (1) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
(1) The National Regulator may issue a written certificate
stating—
(a) that a unique identifier was issued, on a specified day, in relation
to a domestic commercial vessel; or
(b) that a specified certificate in relation to a domestic commercial
vessel was issued, suspended or revoked on a specified day; or
(c) that a specified person was issued, on a specified day, with a
specified certificate in relation to a domestic commercial vessel; or
(d) that a specified person was, on a specified day, issued with a
certificate of competency; or
(e) that a specified certificate of competency was suspended or revoked on
a specified day; or
(f) the conditions to which a specified certificate is, or is not,
subject; or
(g) that a specified person was issued with an instrument (however
described) of accreditation; or
(h) that a specified instrument (however described) of accreditation was
suspended or revoked on a specified day.
(2) In any proceedings for an offence under this Law, a certificate under
this section is prima facie evidence of the matters in the
certificate.
157—Burden
of proving certain matters lies on defendant
In proceedings for an offence against this Law, the prosecution is not
required to prove, in the absence of evidence to the contrary, the
following:
(a) that the defendant was the owner or master of a specified domestic
commercial vessel at the time of the conduct constituting the alleged
offence;
(b) that a specified vessel is a domestic commercial vessel;
(c) that a specified vessel of a specified person is subject to this
Law;
(d) that a specified vessel is not exempt from a provision of this
Law;
(e) that a message or signal was received by the master of a domestic
commercial vessel, if—
(i) the message was transmitted under this Law by a prescribed person;
and
(ii) the vessel was located so as to be able to receive the message or
signal;
(f) that a specified vessel is a particular length or tonnage;
(g) the time of sunrise and sunset in a particular location on any day, as
published by the Commonwealth Bureau of Meteorology established under section 5
of the Meteorology Act 1955.
Division 8—Adverse publicity
orders
(1) This section applies if a court finds a person (the
offender) guilty of an offence against this Law, whether or not
the court convicts the offender of the offence.
(2) The court may make
an order (the adverse publicity order) requiring the
offender—
(a) to take either or both of the following actions within the period
specified in the order:
(i) to publicise, in the way specified in the order, the offence, its
consequences, the penalty imposed and any other related matter;
(ii) to notify a specified person or specified class of persons, in the
way specified in the order, of the offence, its consequences, the penalty
imposed and any other related matter; and
(b) to give the
National Regulator, within 7 days after the end of the period specified in the
order, evidence that the action or actions were taken by the offender in
accordance with the order.
(3) The court may make the adverse publicity order—
(a) either on its own initiative or on the application of the person
prosecuting the offence; and
(b) in addition to any penalty that may be imposed or any other action
that may be taken in relation to the offence.
(4) If the offender
fails to give evidence to the National Regulator in accordance with
subsection (2)(b),
the National Regulator may take the action or actions specified in the
order.
(a) the offender gives evidence to the National Regulator in accordance
with
subsection (2)(b);
and
(b) despite that evidence, the National Regulator is not satisfied that
the offender has taken the action or actions specified in the order in
accordance with the order,
the National Regulator may apply to a court for an order authorising the
National Regulator, or a person authorised in writing by the National Regulator,
to take the action or actions.
(6) If the National Regulator takes one or more actions under
subsection (4) or an
order under
subsection (5), the
National Regulator is entitled to recover from the offender, by action in a
court, an amount in relation to the reasonable expenses of taking the actions as
a debt due to the National Regulator.
Division 9—Regulations and other legislative
instruments
(1) The Governor-General may make regulations prescribing
matters—
(a) required or permitted by this Law to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Law.
(2) The regulations may prescribe standards for the purposes of this Law
including, but not limited to, standards in relation to the following:
(a) the survey of domestic commercial vessels;
(b) the construction of domestic commercial vessels;
(c) machinery and equipment connected with domestic commercial
vessels;
(d) maintenance of domestic commercial vessels;
(e) operation of domestic commercial vessels;
(f) crewing of domestic commercial vessels;
(g) qualifications of crew and masters of domestic commercial
vessels;
(h) safety of domestic commercial vessels;
(i) communications relating to domestic commercial vessels.
(3) The regulations may prescribe requirements relating to the
following:
(a) the keeping of records relating to the operation of domestic
commercial vessels;
(b) auditing the operation of domestic commercial vessels;
(c) the marking of domestic commercial vessels;
(d) advertising the uses of domestic commercial vessels, including
prohibiting advertising of uses not permitted by a certificate for the
vessel.
(4) The regulations may prescribe a scheme for and in relation to
voluntary enforceable undertakings.
(5) The regulations may make provision for and in relation
to—
(a) requiring persons to hold certificates (within the ordinary meaning of
that expression) or other documents for the purposes of giving effect to an
international convention or instrument that is in force for Australia;
and
(b) the issuing, varying, revoking and suspending of such certificates or
other documents.
(6) Before the Governor-General makes regulations for the purposes of
section 7(4) or
(5), the Commonwealth
Minister must be satisfied that—
(a) the COAG Council has been consulted in relation to the proposed
regulations; and
(b) the COAG Council has unanimously agreed to the making of the proposed
regulations.
160—Regulations
may prescribe matters relating to accreditation and
approval
(1) The regulations may
prescribe matters relating to accreditation and approval, including, but not
limited to—
(a) the accreditation
of persons to perform roles prescribed by regulations made for the purposes of
this paragraph; and
(b) the approval of training organisations.
(2) Examples of matters that the regulations may deal with
are—
(a) the standards that are to be met by persons who seek to be accredited
or approved; and
(b) who is responsible for determining whether a person meets the
standards; and
(c) how accreditation is to be recognised (for example, by establishment
of a register or other method); and
(d) the standards and other obligations that persons must continue to meet
to remain accredited or approved; and
(e) who is responsible for monitoring compliance with ongoing requirements
in the regulations; and
(f) the consequences of accredited persons and approved training
organisations failing to comply with the provisions of this Law; and
(g) the obligations of accredited persons and approved training
organisations in relation to the monitoring of their compliance; and
(h) how and by whom an accredited person may have his or her accreditation
(or recognition of that accreditation) varied, suspended or revoked;
and
(i) how and by whom an approved training organisation may have its
approval varied, suspended or revoked; and
(j) review of decisions to refuse, vary, suspend or revoke accreditation
(or recognition of accreditation) or approval; and
(k) the process for handling complaints involving accredited persons or
approved training organisations; and
(l) who may deliver recognised training to accredited persons or approved
training organisations; and
(m) auditing accredited persons or approved training
organisations.
(3) Before the Governor General makes the first regulations for the
purposes of
subsection (1)(a)
providing for the accreditation of persons to perform the role of a surveyor of
vessels, the Commonwealth Minister must be satisfied that—
(a) the COAG Council has been consulted in relation to the proposed
regulations; and
(b) the COAG Council has agreed to the making of the proposed
regulations.
161—Offence
of contravening a condition of accreditation
(1) An accredited person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition prescribed by the
regulations for the purposes of this paragraph; and
(c) the act or omission is a risk to the safety of a person or a domestic
commercial vessel; and
(d) the person intends the act or omission to be a risk to the safety of a
person or a domestic commercial vessel.
Penalty: Imprisonment for 12 months or 200 penalty units, or
both.
(2) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition prescribed by the
regulations for the purposes of this paragraph; and
(c) the act or omission is a risk to the safety of a person or a domestic
commercial vessel; and
(d) the person is reckless as to whether the act or omission is a risk to
the safety of a person or a domestic commercial vessel.
Penalty: 160 penalty units.
(3) A person commits an offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition prescribed by the
regulations for the purposes of this paragraph; and
(c) the act or omission is a risk to the safety of a person or a domestic
commercial vessel; and
(d) the person is negligent as to whether the act or omission is a risk to
the safety of a person or a domestic commercial vessel.
Penalty: 120 penalty units.
(4) A person commits an
offence if—
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition prescribed by the
regulations for the purposes of this paragraph.
Penalty: 60 penalty units.
(5) An offence against
subsection (4) is an
offence of strict liability.
Note—
For strict liability, see section 6.1 of the Criminal
Code.
162—Regulations
may prescribe penalties etc
(1) The regulations may prescribe penalties not more than 50 penalty units
for offences against the regulations.
(2) The regulations may prescribe civil penalties for contraventions of
the regulations, not more than—
(a) for a body corporate—500 penalty units; or
(b) in any other case—100 penalty units.
(3) The regulations may
provide for a person who is alleged to have contravened a provision of the
regulations for whose contravention a civil penalty is prescribed to pay a
penalty to the Commonwealth as an alternative to proceedings for a civil
penalty.
(4) The penalty must not exceed one tenth of the maximum penalty that a
court could have ordered the person to pay if the court was satisfied that the
person had contravened that provision.
163—Legislative
instruments other than regulations
(1) The National Regulator may, by legislative instrument, make a Marine
Order with respect to any matter for which provision must or may be made by the
regulations, other than regulations made for the purposes of the following
provisions:
(a)
sections 7(4) and
(5) (definition of
domestic commercial vessel);
(b)
section 8(3)(a)
(definition of vessel);
(c)
section 150(1)
(fees);
(d)
section 160(1)(a)
(accreditation).
(2) If a Marine Order
is inconsistent with this Law, the Marine Order is, to the extent of the
inconsistency, of no effect.
(3) A reference to this Law in
subsection (2) does
not include a reference to a Marine Order.
164—Incorporation
of material, etc
Despite section 14 of the Legislative Instruments Act 2003 of the
Commonwealth, the regulations and Marine Orders may make provision for or in
relation to a matter by applying, adopting or incorporating any matter contained
in any written instrument in force or existing from time to time, including but
not limited to—
(a) the National Standard for Commercial Vessels; and
(b) the Uniform Shipping Laws Code.
165—Regulations
may deal with transitional matters
(1) The regulations may prescribe matters of a transitional nature
(including matters of an application or saving nature)—
(a) arising out of the enactment of this Law; or
(b) relating to the transition from the application of provisions of laws
of the States and the Territories to the application of provisions of this
Law.
(2) The regulations have effect despite anything else in this
Law.
(3) The regulations may provide that certain provisions of this Law are
taken to be modified as set out in the regulations. Those provisions then have
effect as if they were so modified.
(4) The regulations may provide that a specified identifier, document,
licence, certificate or exemption (however described) issued, whether before or
after the commencement of this Act, under a law of a State or the Northern
Territory is taken to be a specified identifier, document, licence, certificate
or exemption issued under this Law, subject to such requirements and
modifications as are prescribed.
(5) Despite section 12(2) of the Legislative Instruments Act 2003
of the Commonwealth, regulations made under this section may be expressed to
take effect from a date before the regulations are registered under that
Act.
(6) If—
(a) regulations are expressed to take effect from a date before the date
the regulations are registered under the Legislative Instruments Act 2003
of the Commonwealth; and
(b) a person did an act or omitted to do an act before the regulations are
registered; and
(c) apart from the retrospective effect of the regulations, the act or
omission would not have contravened this Law,
then a court must not convict the person of an offence in relation to the
act or omission on the grounds that it contravened this Law.
Schedule 2—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
2—Regulations
may make further transitional or savings provisions
The regulations may make further provisions of a saving or transitional
nature in respect of the operation of this Act.
Part 2—Amendment of Harbors and Navigation
Act 1993
(1) Act—delete "CEO" wherever occurring and substitute in each
case:
CE
(2) Act—delete "$2 500" wherever occurring and substitute in
each case:
$5 000
4—Amendment
of section 4—Interpretation
(1) Section 4(1)—after the definition of authorised
person insert:
boat operator's licence means a boat operator's licence
issued under Part 7;
(2) Section 4(1), definition of CEO—delete the
definition and substitute:
CE means the chief executive of the Department;
(3) Section 4(1), definition of commercial
vessel—delete the definition and substitute:
commercial vessel means—
(a) a domestic commercial vessel; and
(b) a vessel used for commercial, governmental or research purposes;
and
(c) any other vessel of a class declared by the regulations to be included
in the ambit of this definition,
but does not include a vessel, or a vessel of a class, declared by the
regulations to be excluded from the ambit of this definition;
(4) Section 4(1), definition of Commonwealth
Act—delete the definition
(5) Section 4(1), definition of crew—delete the
definition and substitute:
crew, of a vessel, includes—
(a) the operator of the vessel; and
(b) any other person, or person of a class, declared by the regulations to
be a member of the vessel's crew,
but does not include a person, or a person of a class, declared by the
regulations to be excluded from the ambit of this definition;
(6) Section 4(1), definition of department—delete
"department or administrative unit of the Public Service that has, subject to
the Minister, responsibility for administering this Act" and
substitute:
administrative unit of the Public Service that is, under the Minister,
responsible for the administration of this Act
(7) Section 4(1)—after the definition of
department insert:
domestic commercial vessel has the same meaning as in the
Marine
Safety (Domestic Commercial Vessel) National Law;
(8) Section 4(1)—after the definition of drug screening
test insert:
excluded vessel means an excluded vessel within the meaning
of section 6A;
(9) Section 4(1), definition of fishing
vessel—delete the definition
(10) Section 4(1), definition of key
position—delete the definition
(11) Section 4(1), definition of operator—delete
the definition and substitute:
operator, of a vessel, means—
(a) in the case of a domestic commercial vessel or any other commercial
vessel—the master of the vessel; or
(b) in the case of any other vessel—the person in charge of the
vessel while the vessel is underway;
(12) Section 4(1), definition of owner—delete the
definition and substitute:
owner, of a vessel, includes—
(a) in the case of a registered vessel—a person registered on the
register as the owner of the vessel; and
(b) in the case of a commercial vessel—a charterer of the vessel or
an agent of the charterer and a person who takes the vessel on hire;
personal watercraft means a device that—
(a) is propelled by a motor; and
(b) has a fully enclosed hull; and
(c) is designed not to retain water if capsized; and
(d) is designed to be operated by a person who sits astride, stands, or
kneels on the device,
and includes the device commonly referred to as a jet ski;
(13) Section 4(1), definition of recreational
vessel—delete the definition
(14) Section 4(1), definition of vessel—delete
the definition and substitute:
vessel means—
(a) a craft for use, or that is capable of being used, in navigation by
water, however propelled or moved (including an air cushion vehicle, a barge, a
lighter, a submersible, a ferry in chains and a wing in ground effect craft);
and
(b) a surf board, wind surf board, personal watercraft, water skis or
other similar device on which a person rides through water; or
(c) a structure that is designed to float in water and is used for
commercial, industrial or scientific purposes; and
(d) any other thing declared by the regulations to be included in the
ambit of this definition,
but does not include a craft or other thing declared by the regulations not
to be included in the ambit of this definition;
After section 6 insert:
6A—Application of Act to certain
vessels
(1) Other than where a
provision of this Act expressly provides otherwise, the following provisions of
this Act do not apply to, or in relation to, an excluded vessel:
(a) a provision of Part 7;
(b) a provision of Part 9;
(c) a provision of Part 10 Divisions 1 and 2;
(d) a provision of Part 11;
(e) a provision of Part 12;
(f) a provision of Part 13.
(2) A provision of this Act not referred to in
subsection (1)
applies to, or in relation to, an excluded vessel.
(3) In this section—
excluded vessel means—
(a) a vessel to which the Marine Safety (Domestic Commercial Vessel)
National Law applies; and
(b) a vessel to which the application of the Marine Safety (Domestic
Commercial Vessel) National Law is extended pursuant to the
Marine
Safety (Domestic Commercial Vessel) National Law (Application)
Act 2013; and
(c) any other vessel of a class of vessels declared by the regulations to
be included in the ambit of this section.
Section 7—delete the section
7—Amendment
of heading to Part 2 Division 2
Heading of Part 2 Division 2—delete "Officer"
8—Amendment
of section 14—Powers of authorised person
(1) Section 14(1)(b)(i)(A)—delete "and the persons acting in
key positions as members of the crew of the vessel hold appropriate certificates
of competency or exemptions from the requirement to hold certificates of
competency" and substitute:
holds a boat operator's licence or other qualification required under this
Act, or an exemption from the requirement to hold a boat operator's licence or
other qualification
(2) Section 14(1)(b)(i)(D)—delete
subsubparagraph (D)
(3) Section 14(1)(b)(i)(F)—delete "or the conditions of a
certificate of survey or loadline certificate"
(4) Section 14(1)(c)—delete "certificate of competency"
wherever occurring and substitute in each case:
boat operator's licence
(5) Section 14(1)(d)—delete paragraph (d) and
substitute:
(d) the authorised person may require a person who is apparently in charge
of a vessel to produce a certificate of registration in respect of the
vessel;
9—Amendment
of section 28C—General responsibility of port
operator
Section 28C(2)—delete subsection (2)
10—Amendment
of section 35—Compulsory pilotage
(1) Section 35(1)—delete "harbor to which this section
applies," and substitute:
prescribed area
(2) Section 35(3)—delete subsection (3)
(3) Section 35—after subsection (4) insert:
(5) In this section—
prescribed area means—
(a) a harbor prescribed by the regulations for the purposes of this
section; and
(b) any other area of this jurisdiction prescribed by the regulations for
the purposes of this section.
Part 6—delete the Part
12—Substitution
of heading to Part 7
Heading to Part 7—delete the heading and substitute:
Part 7—Boat operator's licence
etc
13—Amendment
of section 46—Vessels to which this Part applies
(1) Section 46(a)—delete "recreational"
(2) Section 46(b)—delete paragraph (b) and
substitute:
and
(b) any other vessel of a class declared by regulation to be a class of
vessels to which this Part applies.
14—Amendment
of section 47—Requirement for boat operator's licence, exemption or
permit
(1) Section 47(1) and (2)—delete subsections (1)
and (2)
(2) Section 47(3)—delete "recreational"
(3) Section 47(3)(a)—delete "certificate of competency of the
appropriate class (a boat operator's licence)" and substitute:
boat operator's licence
(4) Section 47(3)(b)—delete "certificate of competency of the
relevant class" and substitute:
boat operator's licence
(5) Section 47(3)—after paragraph (c) insert:
or
(d) a prescribed certificate of competency that is in force.
(6) Section 47(3), expiation fee—delete "$105" and
substitute:
$315
(7) Section 47(3a)—delete "recreational"
(8) Section 47(3a)(a)—delete "certificate of competency of the
appropriate class (a boat operator's licence)" and substitute:
boat operator's licence
(9) Section 47(3a)(b)—delete "certificate of competency of the
relevant class" and substitute:
boat operator's licence
(10) Section 47(3a)—after paragraph (c) insert:
or
(d) a prescribed certificate of competency that is in force.
(11) Section 47(3a), expiation fee—delete "$105" and
substitute:
$315
(12) Section 47(4)—delete subsection (4) and
substitute:
(4) This section does not apply in relation to a hire and drive vessel
(within the meaning of section 47A).
(13) Section 47(5)—delete "certificate of competency of the
relevant class" and substitute:
boat operator's licence
(14) Section 47—after subsection (5) insert:
(6) In this section—
prescribed certificate of competency means—
(a) a certificate of competency (within the meaning of the Marine
Safety (Domestic Commercial Vessel) National Law); or
(b) a certificate of competency (however described) issued by a State or
Territory that continues to have effect pursuant to transitional provisions made
under the Marine Safety (Domestic Commercial Vessel) National
Law),
but does not include a certificate of competency of a kind declared by the
regulations not to be a prescribed certificate of competency for the purposes of
this definition (whether generally or in relation to the operation of a vessel
in a particular area).
After section 47 insert:
47A—Requirements for operators of hire and drive
vessels
(1) Without limiting section 46, this section applies to, or in
relation to, an excluded vessel that is a hire and drive vessel fitted with an
engine.
(2) A person must not
operate a hire and drive vessel fitted with an engine unless he or she
holds—
(a) a boat operator's licence; or
(b) a prescribed certificate of competency; or
(c) an exemption from the operation of this subsection; or
(d) a special permit granted under the regulations.
Maximum penalty: $2 500.
Expiation fee: $105.
(3) A person must
not cause, suffer or permit another to operate a hire and drive vessel fitted
with an engine unless the other person holds—
(a) a boat operator's licence; or
(b) a prescribed certificate of competency; or
(c) an exemption from the operation of this subsection; or
(d) a special permit granted under the regulations.
Maximum penalty: $2 500.
Expiation fee: $105.
(4) However,
subsection (2) and
(3) do not apply in
relation to—
(a) the operation of a hire and drive vessel that is a houseboat by a
person who—
(i) is at least 18 years of age; and
(ii) holds either—
(i) a current
driver's licence under the Motor
Vehicles Act 1959 endorsed with the classification C
or R; or
(ii) a current interstate licence or foreign licence (as defined in the
Motor
Vehicles Act 1959) authorising the person to drive motor vehicles
of the kind that may be driven pursuant to a driver's licence referred to in
subsubparagraph (i)
and is, by virtue of section 97A of that Act, authorised to drive such
motor vehicles on roads in this State; and
(iii) has received such practical and written instruction in relation to
the operation of the houseboat as the regulations may require; or
(b) the operation of a hire and drive small vessel by a person
who—
(i) is at least 16 years of age; and
(ii) has received such practical and written instruction in relation to
the operation of the vessel as the regulations may require.
(5) For the
purposes of this section, a vessel will be taken to be a houseboat
if—
(a) the vessel has facilities for overnight accommodation; and
(b) —
(i) all the living facilities are on or above the deck of the vessel;
or
(ii) although not all the living facilities are on or above the deck of
the vessel, the vessel is designed and constructed as a river boat providing
living facilities similar to that provided in a residential building and the CE
and the owner of the vessel agree that the vessel is to be classed as a
houseboat.
(6) A person who commits an offence against
subsection (2) while
disqualified from holding a boat operator's licence or prescribed certificate of
competency (as the case requires) is liable to a fine of twice the amount
prescribed above.
(7) In this section—
personal watercraft means a device that—
(a) is propelled by a motor; and
(b) has a fully enclosed hull; and
(c) is designed not to retain water if capsized; and
(d) is designed to be operated by a person who sits astride, stands, or
kneels on the device,
and includes the device commonly referred to as a jet ski;
prescribed certificate of competency has the same meaning as
in section 47;
hire and drive small vessel means a hire and drive vessel
that is—
(a) a personal watercraft; or
(b) a motorised dinghy having a length not exceeding 5 m;
hire and drive vessel means any vessel which is let for hire
or reward or for any other consideration, including vessels provided in
conjunction with holiday establishments or hotels for the use of guests or
tenants.
16—Amendment
of section 48—Issue of boat operator's licence or
exemption
(1) Section 48(1)—delete "certificates of competency" and
substitute:
a boat operator's licence
(2) Section 48(2)(a)—delete "examinations appropriate to a
certificate of competency of a particular class" and substitute:
examination for a boat operator's licence
(3) Section 48(2)(b)—delete "the requirements of the
regulations appropriate to an applicant for a certificate of competency of that
class" and substitute:
any requirements set out in the regulations in relation to the issue of a
boat operator's licence
(4) Section 48(2)(c)—delete "certificate of competency of that
class" and substitute:
boat operator's licence
(5) Section 48(2)—delete "certificate of competency of that
class" last occurring and substitute:
boat operator's licence
(6) Section 48(3)—delete "certificate of competency" wherever
occurring and substitute in each case:
boat operator's licence
(7) Section 48(4)—delete "certificate of competency issued in
respect of a recreational vessel (a boat operator's licence)" and
substitute:
a boat operator's licence
(8) Section 48(5)—delete "certificate of competency or to hold
a certificate of competency of a particular class" and substitute:
a boat operator's licence, or to hold a boat operator's licence
17—Amendment
of section 49—Cancellation of boat operator's licence by
court
(1) Section 49—delete "certificate of competency" wherever
occurring and substitute in each case:
boat operator's licence
(2) Section 49—delete "such a certificate" and
substitute:
a boat operator's licence
18—Amendment
of section 50—Cancellation of boat operator's licence by
CE
(1) Section 50—delete "certificate of competency" wherever
occurring and substitute in each case:
boat operator's licence
(2) Section 50—delete "Minister" wherever occurring and
substitute in each case:
CE
(3) Section 50(1)(b)—delete "certificate" and
substitute:
boat operator's licence
(4) Section 50(1)(c)—delete "such a certificate" and
substitute:
a qualification equivalent to a boat operator's licence (however
described)
(5) Section 50(1)—delete "such a certificate" last occurring
and substitute:
a boat operator's licence
(6) Section 50(2)—delete "certificate of competency" and
substitute:
boat operator's licence
(7) Section 50(3)—delete "certificate of competency" and
substitute:
boat operator's licence
(8) Section 50(3)—delete "certificate" wherever occurring and
substitute in each case:
boat operator's licence
19—Amendment
of heading to Part 9
Heading to Part 9—delete ", certificates of survey, loadline
certificates"
20—Amendment
of section 54—Application of Division
(1) Section 54(a)—delete "recreational"
(2) Section 54(b)—delete paragraph (b) and
substitute:
and
(b) any other vessel of a class declared by regulation to be a class of
vessels to which this Division applies.
21—Amendment
of section 55—Registration
(1) Section 55(2), expiation fee provision—delete the expiation
fee provision and substitute:
Expiation fee:
(a) if the vessel is registered but not marked in accordance with the
regulations—$210;
(a) if the vessel is marked in accordance with the regulations but not
registered—$315;
(b) if the vessel is neither registered nor marked in accordance with the
regulations—$525.
(2) Section 55(2)—delete "of the vessel, and the master or
operator of the vessel," and substitute:
and operator of the vessel
22—Repeal
of Part 9 Divisions 2 and 3
Part 9 Divisions 2 and 3—delete Divisions 2
and 3
23—Amendment
of section 64A—Application of Division
Section 64A(2)—delete "recreational" wherever
occurring
24—Amendment
of section 65—General requirements
(1) Section 65(1)(c)—delete "or the conditions of a certificate
of survey or loadline certificate"
(2) Section 65(2)—delete "the master or"
(3) Section 65(2), expiation fee provision—delete the expiation
fee provision and substitute:
Expiation fee:
(a) if 1 or 2 items of equipment are
involved—$105;
(b) if 3 or 4 items of equipment are
involved—$210;
(c) if more than 4 items of equipment are
involved—$315.
25—Amendment
of section 65A—Requirement to have emergency position indicating radio
beacon
Section 65A(2)—delete "the master or"
26—Amendment
of section 66—Power to prohibit use etc of unsafe
vessel
(1) Section 66(1)(c)—delete "or the conditions of a certificate
of survey or loadline certificate"
(2) Section 66(1)—delete "order, prohibit the use of the
vessel." and substitute:
order, do 1 or more of the following:
(a) prohibit the use of the vessel;
(b) require the vessel to be taken out of the water as soon as is
reasonably practicable;
(c) require that the vessel not be returned to the water until any
conditions specified in the order have been satisfied.
(3) Section 66(3)—delete "the master" and substitute:
operator
27—Amendment
to section 67—Minister's power to act in an emergency
(1) Section 67(2)(b)—delete "master or owner" and
substitute:
owner or operator
(2) Section 67—after subsection (4) insert:
(5) This section applies to, or in relation to, an excluded
vessel.
28—Substitution
of heading to Part 10 Division 2
Heading to Part 10 Division 2—delete the heading and
substitute:
Division 2—CE may require
survey
29—Amendment
of section 68—CE may require survey
Section 68(1)—delete "licensed surveyor nominated by the CEO"
and substitute:
surveyor accredited or otherwise recognised under the Marine
Safety (Domestic Commercial Vessel) National Law
30—Amendment
of section 75—Casualties to be reported
Section 75(3)—delete subsection (3) and
substitute:
(3) If a report is not made as required by this section, the owner and
operator of the vessel are each guilty of an offence.
Maximum penalty: $2 500.
Expiation fee: $210.
31—Amendment
of section 78—Enquiries into casualties
(1) Section 78(3)—delete "certificate of competency" wherever
occurring and substitute in each case:
boat operator's licence
(2) Section 78(3)—delete "or suspend"
32—Amendment
of section 79—Enquiries into misconduct or
incompetence
(1) Section 79(1)—delete "a member of the crew" and
substitute:
the operator, or a member of the crew,
(2) Section 79(3)—delete "certificate of competency" wherever
occurring and substitute in each case:
boat operator's licence
(3) Section 79(3)—delete "or suspend"
33—Amendment
of section 80—Review of administrative decisions
(1) Section 80(2)(c)—delete "certificate of competency" and
substitute:
boat operator's licence
(2) Section 80(2)(d)—delete "certificate of competency"
wherever occurring and substitute in each case:
boat operator's licence
(3) Section 80(2)(e)—delete "certificate of competency" and
substitute:
boat operator's licence
(4) Section 80(2)(f)—delete paragraph (f)
(5) Section 80(2)(g)—delete paragraph (g)
(6) Section 80(2)(h)—delete paragraph (h)
(7) Section 80(2)(j)—delete paragraph (j)
34—Amendment
of heading to Part 13
Heading to Part 13—delete "Commonwealth Act" and
substitute:
35—Amendment
of section 81—Application of Navigation
Act 2012
Section 81—delete "Commonwealth Act or specified provisions of
the Commonwealth Act" and substitute:
Navigation Act 2012 of the Commonwealth or specified provisions of
that Act
36—Amendment
of section 82—Agreement between the Commonwealth and the
State
Section 82—delete "Commonwealth Act" and substitute:
Navigation Act 2012 of the Commonwealth
37—Amendment
of section 83—Exemptions
Section 83(1)—delete "the participants, and any person or class
of persons performing incidental or ancillary functions, in any regatta, race,
contest or other activity likely to involve the operation of vessels in
contravention of this Act" and substitute:
a person
38—Amendment
of section 87—Evidentiary provision
Section 87(1)(e)—after "loadline certificate" insert:
issued under the Act before the commencement of the Marine
Safety (Domestic Commercial Vessel) National Law (Application)
Act 2013
39—Amendment
of section 90—Fees and charges to be paid into separate
fund
Section 90(1)—delete "recreational"
After section 90 insert:
90AA—Facilities levy
(1) This section applies to all vessels (other than a vessel, or vessels
of a class, declared by the regulations to be exempt from operation of this
section).
(2) A levy (the Facilities levy) is imposed for the purpose
of providing a source of revenue to establish, maintain and improve facilities
used by vessels in this State.
(3) The facilities levy is payable by the owner of a vessel to which this
section applies—
(a) in the case of a vessel that is required to be registered under this
Act—on registration of the vessel; or
(b) in any other case— on or before the date fixed by the CE for the
purposes of this subsection.
(4) If 2 or
more persons own a vessel, the owners are jointly and severally liable for the
facilities levy in respect of the vessel.
(5) The amount of the facilities levy is to be fixed by the regulations,
and may vary according to—
(a) the length of the vessel; or
(b) the use of the vessel; or
(c) any other prescribed factor.
(6) The CE may recover the amount of an unpaid facilities levy as a debt
from a person liable to pay the amount under this section.
(7) If 2 or more persons are jointly or severally liable to pay a
facilities levy, the CE may recover the whole of the levy from them, or any of
them, or any 1 of them.
(8) A certificate of registration will not be issued for a vessel until
any levy payable under this section is paid.
41—Amendment
of section 90A—Facilities Fund
(1) Section 90A(3)(a)—delete "the regulations on the
registration, inspection or survey of vessels" and substitute:
section 90AA
(2) Section 90A(4)—delete subsection (4)
Section 91—delete the section and substitute:
91—Regulations
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting the generality of
subsection (1),
those regulations may make provision for or relating to—
(a) exemptions (conditional or unconditional) from specified provisions of
this Act; and
(b) fees and charges in respect of any matter under this Act and their
payment, recovery or waiver; and
(c) fines, not exceeding $5 000, for offences against the
regulations; and
(d) expiation fees for alleged offences against the regulations;
and
(e) facilitation of proof of the commission of offences against the
regulations.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister, the CE or
other specified person or body;
(c) make provisions
of a saving or transitional nature consequent upon—
(i) the enactment of, or amendments to, the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012 of the Commonwealth or the
Marine
Safety (Domestic Commercial Vessel) National Law;
(ii) the making of, or variations to, the regulations made under the
Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of
the Commonwealth or the
Marine
Safety (Domestic Commercial Vessel) National Law.
(4) The regulations may refer to or incorporate, wholly or partially and
with or without modification, a code, standard or other document prepared or
published by a prescribed body, either as in force at the time the regulations
are made or as in force from time to time.
(5) If a code, standard or other document is referred to or incorporated
in the regulations—
(a) a copy of the code, standard or other document must be kept available
for public inspection, without charge and during ordinary office hours, at an
office or offices specified in the regulations; and
(b) evidence of the contents of the code, standard or other document may
be given in any legal proceedings by production of a document apparently
certified by the Minister to be a true copy of the code, standard or other
document.
Part 3—Transitional
provision
A certificate of competency of a class appropriate to operate a
recreational vessel (a boat operator's licence) in force under the Harbors
and Navigation Act 1993 immediately before the commencement of this
Act, continues in force subject to that Act (as amended by this Act) as if it
were a boat operator's licence issued under that Act (as amended by this
Act).