Western Australian Marine Act 1982
Western Australia
Western Australian Marine Act 1982
Contents
Part 1 — Preliminary
1.Short title1
2.Commencement1
3.Terms used1
3A.Vessels and crew to which Act applies1
3B.Relationship to Domestic Commercial Vessel National Law1
4.Act not to apply to naval ships etc.1
5.Application to Crown1
Part 2 — Powers of inspectors
Division 1 — Preliminary
6.Terms used1
Division 2 — General powers
Subdivision 1 — Powers relating to vessels, exercisable without consent or warrant
7.Boarding vessels1
8.Requiring master of vessel to answer questions about vessel’s nature or operations1
9.Powers in relation to vessels1
10.Failing to comply with certain requirements under s. 91
11.Sampling, securing or seizing things found1
Subdivision 2 — Powers relating to premises, exercisable with consent or under warrant
12.Entering premises1
13.Powers of inspectors in relation to premises1
14.Enforcement powers1
15.Failing to comply with certain requirements of inspectors1
16.Using force in executing warrant1
17.Relationship with Subdivision 11
Subdivision 3 — Requiring certain documents under Act to be produced for inspection
18.Requiring certain documents to be produced for inspection1
Division 3 — Directions and improvement notices
19.Power to give directions1
20.Directions under s. 19: procedural details1
21.Directions under s. 19: inspector may remedy failure to comply1
22.Improvement notices1
23.Improvement notices given in relation to vessels1
Division 4 — General provisions relating to powers under Part
Subdivision 1 — General matters concerning entry and exercise of powers
24.Consent to entry1
25.Premises with 2 or more occupiers1
Subdivision 2 — Warrants
26.Warrants1
27.Warrants applied for remotely1
28.Entry under warrant: rights of occupier1
29.Inspector must be in possession of warrant1
30.Occupier entitled to observe execution of warrant1
31.Occupier to provide inspector with facilities and assistance1
32.Execution of warrant1
33.Completing execution of warrant after temporary cessation1
34.Completing execution of warrant stopped by court order1
Subdivision 3 — Securing things
35.Electronic equipment may be secured pending expert assistance to operate it1
36.Extending period for which something is secured1
37.Interfering with securing of things1
Subdivision 4 — Seizing and detaining things
38.Copies of seized things to be provided1
39.Receipts for seized things1
40.Return of seized things1
41.Judicial officer may permit seized things to be retained1
42.Forfeiture and disposal of seized things1
Part 3 — Marine powers and duties
57.General powers to stop and search vessels1
58.Power to inspect logs and muster crew1
58A.Compensation in respect of false distress signals1
58B.Offence to take unsafe ship to sea1
60.Penalty for unlawfully assuming control1
61.Power to detain unsafe pleasure or prescribed vessels1
62.Detained vessels: unauthorised operation1
63.Detained vessels: inspection1
63A.Detained vessels: return1
63B.Detained vessels: forfeiture and disposal1
63C.SAT review of decision to detain vessel or forfeiture declaration1
64.Marine incidents: terms used1
64A.Marine incidents: duties1
64B.Marine incidents: reporting1
64C.Marine incidents: preserving evidence1
64D.Marine incidents: power to require responsible person to give information1
65.Mooring licences1
66.Closure of waters1
67.Limiting speed of vessels1
68.Speed measuring equipment1
69.Offences relating to hatches1
70.Offence of being on board vessel unlawfully1
71.Removal of vessels constituting hazards or obstructions1
72.Offences in relation to disorderly persons on passenger ships1
73.Offences in relation to interference with machinery or obstruction of crew1
74.Penalty for refusing to give name and address etc.1
75.Arrest of offenders on passenger ships1
Part 3A — Safe navigation of vessels, and alcohol and drug related offences
Division 1 — Preliminary
75A.Terms used1
75AA.When individual operates or navigates vessel1
75AB.When vessel is involved in incident1
75AC.Person taken to be in command or charge of vessel for purposes of Parts 3A and 3B1
75AD.Person is incapable of having proper control of vessel1
75AE.Person with BAC of 0.15 or above taken to be incapable of proper control1
75AF.Circumstances of aggravation1
Division 2 — Safe navigation of vessels and alcohol and drug related offences
Subdivision 1 — Dangerous navigation of vessels occasioning death, grievous bodily harm or bodily harm
75B.Dangerous navigation of vessel occasioning death1
75BA.Dangerous navigation of vessel occasioning grievous bodily harm1
75BB.Dangerous navigation of vessel occasioning bodily harm1
75BC.Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm1
Subdivision 2 — Reckless, dangerous and careless navigation of vessels
75BD.Reckless navigation of vessel1
75BE.Dangerous navigation of vessel1
75BF.Careless navigation of vessel1
Subdivision 3 — Provisions relating to offences in Subdivisions 1 and 2
75BG.Application of Subdivision1
75BH.Circumstances occasioning death, grievous bodily harm or bodily harm1
75BI.Provisions for offences involving incidents occasioning death, grievous bodily harm or bodily harm1
75BJ.Defence: death or harm not attributable to alcohol or drugs1
75BK.Defence: death or harm not attributable to manner of operation or level of care and attention1
75BL.Defence: inspector or police officer navigating vessel in certain circumstances1
Division 3 — Navigation of vessels while under the influence of alcohol or drugs or impaired by drugs
75C.Navigation of vessel while under influence of alcohol or drugs1
75CA.Navigation of vessel while under influence of both alcohol and drugs1
75CB.Defence: under influence of drug prescribed or administered for therapeutic reasons1
75CC.Master must not permit person under influence of alcohol or drugs or both to operate vessel1
75CD.Navigation of vessel while impaired by drugs1
75CE.When person may be convicted of navigation of vessel while impaired by drugs offence1
75CF.Defence: impaired by drug prescribed or administered for therapeutic reasons1
75CG.Rights of person charged with particular offences1
Part 4 — International Conventions
Division 1 — General
76.Terms used1
77.Regulations under this Part1
78.Regulations giving effect to Conventions: discretion of Governor and Minister1
Division 2 — Prevention of Collisions Convention
79.Regulations giving effect to Prevention of Collisions Convention1
Division 3 — Container Convention
80.Regulations giving effect to Container Convention1
81.Safety requirements and tests not required or permitted by the Container Convention not to be imposed1
Division 4 — Limitation Convention and limitation provisions
82.Interpretation1
83.Application1
84.Provisions of Limitation Convention having force of law1
85.Limitation in relation to non‑seagoing ferries1
86.Application to determine liability1
87.Regulations giving effect to Limitation Convention1
88.Ship owner not to be liable in certain cases of loss of, or damage to, goods1
89.Ship owner not entitled to limit liability in respect of claims by crew etc.1
Division 5 — Safety Convention
90.Regulations giving effect to Safety Convention1
Part 5 — Carriage of dangerous goods
91.Restriction on carriage of dangerous goods1
92.Penalty for misdescription of goods and sender1
93.Powers of owner or master as to dangerous goods1
94.Forfeiture of dangerous goods1
95.Minister may prohibit carriage of cargo1
96.Regulations as to dangerous goods1
97.Explosives on passenger vessels1
Part VI — Pleasure vessels
98.Terms used1
99.Regulations in respect of pleasure vessels1
Part VII — Investigations and inquiries
Division 1 — General
100.Application1
Division 2 — Preliminary investigations and powers
101.Preliminary inquiries and reports1
102.Powers of investigators and inspectors1
103.Formal investigation by Court1
Division 3 — Courts of Marine Inquiry
104.Governor may establish Court of Marine Inquiry1
105.Magistrates and assessors to sit1
106.Assessors1
107.Officers of Court of Marine Inquiry1
108.Rules of Court1
Division 4 — The powers and duties of Courts of Marine Inquiry
109.Functions of Court of Marine Inquiry1
110.Powers and duties in respect of unsafe ships1
111.Presiding magistrate and procedure1
112.Power of Court to suspend or cancel certificate1
113.Rehearing1
Part 8 — Supplementary and administrative provisions
114.Powers in relation to regulations1
115.Regulations may adopt codes etc.1
115A.Exemptions and equivalents1
116.Minister may delegate1
117.Appointment of inspectors and authorised officers1
118.Certificate of appointment1
119.Penalty for obstruction1
120.Penalty for false declarations etc.1
120A.Inspector may request details1
121.Offences in connection with certificates, licences etc.1
122.Liability of chief executive officer and owner for costs and compensation1
123.Complainant may be ordered to give security1
124.Immunity of Minister and officials1
Part 8A — Disqualification from holding or obtaining WA marine qualification
Division 1 — Preliminary
124G.Terms used1
Division 3 — Provisions relating to disqualification orders by court
124GK.Application of Division1
124GL.Notifying chief executive officer of disqualification order1
124GM.Removal of disqualification1
124GN.Removal of disqualification: additional provisions1
124GO.Notifying chief executive officer of disqualification order1
Division 4 — Effect of disqualifications and other matters
124GP.Effect of disqualification1
124GQ.Other effects of disqualification1
124GR.Calculating period of disqualification1
124GS.Navigating certain vessels when disqualified from holding or obtaining WA marine qualification1
Part 9 — Legal proceedings
Division 2 — Provisions relating to sentencing for dangerous navigation and alcohol and drug related offences
124I.Term used: young person1
124IA.Limitation on period for which previous offences taken into account1
124IB.Sentencing for particular offences: option for community based order or youth community based order1
124IC.Sentencing for particular offences if community based order or intensive supervision order imposed1
124ID.Pre‑sentence report required for sentencing for navigation while impaired by drugs1
124IE.Sentencing for first offence of navigation while impaired by drugs or failure to comply with drug impairment assessment1
124IF.Sentencing for second or subsequent offence of navigation while impaired by drugs or failure to comply with drug impairment assessment1
124IG.Mandatory disqualification1
124IH.Minimum fines1
Division 3 — General matters
125.Evidence of documents and proof of signature1
125A.Limitation period for prosecutions1
126.Admissibility of documents in evidence1
127.Service of summons and process1
128.Service of notice where no master1
129.Averments relating to vessels1
130.Averment relating to qualifications of crew1
131.Place where act committed1
132.Proceedings by way of infringement notice1
133.Onus on owner to identify person in charge of vessel1
134.Production of proof of identity by authorised person1
Part 10 — Repeal and transitional provisions
Division 1 — Western Australian Marine Act 1982
135.Repeals1
Division 2 — Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023
136.Certain orders, notices, exemptions and certificates1
137.Transitional regulations1
Division 3 — Western Australian Marine Amendment Act 2023
138.Offences against repealed section 591
139.Transitional regulations1
Schedule 1 — Container Convention
Schedule 2 — Limitation Convention
Schedule 3 — Prevention of Collisions Convention
Schedule 4 — Safety Convention
Schedule 5 — 1978 Protocol relating to Safety Convention
Notes
Compilation table1
Uncommenced provisions table1
Other notes1
Defined terms
Western Australia
Western Australian Marine Act 1982
An Act to regulate navigation of, and to provide for the safe use of, waters in or relating to the State, and for related purposes.
[Long Title inserted: No. 24 of 2023 s. 37.]
[Heading amended: No. 24 of 2023 s. 38.]
This Act may be cited as the Western Australian Marine Act 1982.
The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation after the approval of Her Majesty thereto has been proclaimed in the State.
(1)In this Act, unless the contrary intention appears —
agreement means the ship’s articles or agreement with the crew;
alcohol or drug testing requirement, in relation to a person, means a requirement imposed on the person under Part 3B Division 2 or 3;
analyst has the meaning given in the Road Traffic Act 1974 section 65;
Australian coastal and middle‑water operations in relation to the limits of a vessel’s area of operations, means —
(a)ocean going operations in waters within a range of 600 nautical miles to seaward of the coast; or
(b)operations within such lesser limits as may be specified by the chief executive officer;
Australian fishing vessel means a fishing vessel that is registered, or entitled to be registered, in Australia or in relation to which an instrument under section 4(2) of the Fisheries Act 1952 1 of the Commonwealth is in force;
Australian ship has the same meaning as in the Shipping Registration Act 1981 of the Commonwealth;
authorised person means a person designated under section 117(1) as an authorised person for the purposes of the provision in which the term is used;
BAC, in relation to a person, means the concentration of alcohol in the person’s blood, expressed in grams of alcohol per 100 mL of blood;
Example for this definition:
A BAC of 0.08 g is a concentration of 0.08 g of alcohol per 100 mL of blood.
bodily harm has the meaning given in The Criminal Code section 1(1);
boilers and machinery includes engines and everything connected therewith employed in propelling a ship, and every description of machinery used on a ship for the purposes of the ship or her cargo, and all other apparatus or things attached to or connected therewith or used with reference to any engine or under the care of the marine engineer or marine engine driver;
casualty includes the loss, abandonment, collision, grounding of, and any mishap, accident, and damage, whether by fire or otherwise, to a ship and any serious injury to a person on board a ship;
Chemistry Centre (WA) means the body established by the Chemistry Centre (WA) Act 2007 section 4(1);
chief executive officer means the chief executive officer of the Department;
commercial vessel means a vessel which is not used solely for pleasure or recreation and the use of which is made, allowed or authorised in the course of any business or in connection with any commercial transaction and, subject to any specific provision to the contrary, includes any Government vessel other than one that belongs to an arm of the Defence Force;
Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;
dangerous goods has the same meaning as in the Dangerous Goods Safety Act 2004;
dentist means a person —
(a)registered under the Health Practitioner Regulation National Law (Western Australia) in the dental profession; and
(b)whose name is entered on the dentists division of the Register of Dental Practitioners kept under that Law;
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
detained vessel means a vessel detained under section 61;
Disciplinary Appeal Tribunal means the Western Australia Mercantile Marine Disciplinary Appeal Tribunal established by section 22;
domestic commercial vessel has the meaning given in the Scheduled Domestic Commercial Vessel National Law section 7;
drug has the meaning given in the Road Traffic Act 1974 section 65;
drugs analyst has the meaning given in the Road Traffic Act 1974 section 65;
equipment in relation to a vessel, includes every thing or article belonging to or to be used in connection with, or necessary for the navigation and safety of, the vessel and, in particular, includes boats, tackle, pumps, apparel, furniture, lifesaving appliances, spars, masts, rigging, sails, fog signals, lights, signals of distress, signalling lamps, pilot ladders, radio equipment, medicines, medical and surgical stores and appliances, fire prevention, detecting and extinguishing appliances, inert gas systems, echo‑sounding devices, mechanical pilot hoists, buckets, compasses, charts, axes, lanterns and gear and apparatus for loading or unloading, or otherwise handling, cargo, and includes also such other things as may be prescribed;
explosives means a substance or article used or manufactured with the purpose of producing a practical effect by explosion or a pyrotechnic effect;
fishing vessel means a vessel used or intended to be used for catching fish, whales, seals, walrus, or other living resources of the sea or the seabed for trading or manufacturing purposes, but excludes any vessel engaged in harvesting or transportation of algae or aquatic plants;
floating restaurant includes a floating bar, canteen, coffee shop, food store or kitchen;
foreign vessel has the meaning given in the Navigation Act 2012 (Commonwealth) section 14(1);
former Navigation Act means the Navigation Act 1912 (Commonwealth) as in force before it was repealed;
Government vessel means a ship —
(a)that belongs to the Commonwealth or a State or Territory of the Commonwealth; or
(b)the beneficial interest in which is vested in the Commonwealth or a State or Territory of the Commonwealth; or
(c)that is for the time being demised or sub‑demised to, or in the exclusive possession of, the Commonwealth or a State or Territory of the Commonwealth, and includes a ship that belongs to an arm of the Defence Force, but does not include a ship that belongs to the Australian Shipping Commission or the Western Australian Coastal Shipping Commission;
grievous bodily harm has the meaning given in The Criminal Code section 1(1);
identity card means an identity card issued under section 118;
incompetent means unable, from any cause whatever, to perform efficiently the duty of the person in relation to which the word is used and incompetence has corresponding meaning;
infringement notice has the meaning given in section 132(1);
inshore operations in relation to the limits of a vessel’s area of operations means —
(a)operations within a limit of 15 nautical miles to seaward of the coast but not more than 30 nautical miles from a safe anchorage; or
(b)operations within such lesser limits as may be specified by the chief executive officer;
inspector means —
(a)a person designated under section 117(1) as an inspector for the purposes of the provision in which the term is used; or
(b)a member of a class of police officer designated under section 117(2) as inspectors for the purposes of the provision in which the term is used;
leave vessel, accompany officer or wait requirement, in relation to a person, means a requirement imposed on the person under section 75G;
Manning Committee means the Western Australia Marine Manning Committee established by section 15;
marine qualification means —
(a)a WA marine qualification; or
(b)a qualification, permit, licence or certificate (however described) issued to a person —
(i)in relation to navigating or operating a vessel (as those terms are defined in section 75AA(1) and (2)), or required by crew of a vessel; and
(ii)under a law of another Australian jurisdiction or an overseas jurisdiction;
marine qualification information has the meaning given in section 107;
master, of a vessel —
(a)means the person who has command or charge of the vessel; but
(b)does not include a pilot;
medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;
misconduct includes careless navigation, drunkenness, tyranny, any failure of duty or want of skill, or any improper conduct;
mooring information has the meaning given in section 107;
Navigation Act means the Navigation Act 1912 of the Commonwealth as amended and in force for the time being;
nurse practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession whose registration under that Law is endorsed as nurse practitioner;
officer —
(a)of a body corporate — has the meaning given in the Corporations Act 2001 (Commonwealth) section 9; and
(b)of the Department — means a public service officer in the Department;
official includes every person in the service of the State employed for any purpose or duty in the administration of this Act;
offshore operations in relation to the limits of a vessel’s area of operations, means —
(a)operations within a limit of 200 nautical miles to seaward of the coast; or
(b)operations within such lesser limits as the chief executive officer may specify;
owner in relation to a vessel means any person exercising, or discharging or claiming the right or accepting the obligation to exercise or discharge, any of the powers or duties of an owner whether on their own behalf or on behalf of another and includes a person who is the owner jointly with any other person or persons and an officer of a body corporate;
partially smooth waters means waters within such geographical limits as are prescribed for the purposes of this definition;
passenger means every person on board a vessel other than —
(a)the master, members of the crew, other persons employed or engaged in any capacity on board the vessel in the business of that vessel; and
(b)a child under one year of age;
passenger vessel means a vessel that carries, or is certified to carry, more than 12 passengers;
personal watercraft —
(a)means a craft that is —
(i)powered by a motor; and
(ii)designed (whether or not exclusively) to be operated by a person on or astride the hull and not within it;
and
(b)includes a craft that was designed (whether or not exclusively) as a personal watercraft but which has been —
(i)modified; or
(ii)transformed into some other sort of vessel;
pilot means a person who does not belong to, but has the conduct of, a vessel;
pleasure vessel —
(a)means a vessel held wholly for the purpose of recreational or sporting activities and not for hire or reward; but
(b)does not include a domestic commercial vessel;
ply means to navigate in or cause to pass over navigable waters;
port includes places from which vessels may depart or between which vessels may ply and is not restricted to places which are ports for the purposes of the Shipping and Pilotage Act 1967;
prescribed means prescribed by regulations made under this Act;
prescribed illicit drug means a drug that is —
(a)a prescribed illicit drug as defined in the Road Traffic Act 1974 section 65; or
(b)a drug prescribed for the purposes of this definition;
prescribed vessel means a vessel that is prescribed, or in a class of vessel prescribed, for the purposes of this definition, other than a regulated Australian vessel, a foreign vessel, a domestic commercial vessel or a pleasure vessel;
regulated Australian vessel has the meaning given in the Navigation Act 2012 (Commonwealth) section 15;
repealed Act means the Act repealed by section 135(1) and includes regulations made under that Act;
restricted offshore operations in relation to the limits of a vessel’s area of operations means —
(a)operations within a range of 30 nautical miles from the seaward limit of a designated smooth or partially smooth water area or of a safe anchorage; or
(b)operations within such lesser limits as may be specified by the chief executive officer;
safety manning in relation to a vessel, means the number of certificated and uncertificated persons required to safely navigate that vessel;
Scheduled Domestic Commercial Vessel National Law means the Marine Safety (Domestic Commercial Vessel) National Law set out in the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Commonwealth) Schedule 1;
seaman means a person employed or engaged in any capacity on board a trading ship on the business of the ship, other than the master, special personnel, a pilot, or a person temporarily employed on the ship in port;
smooth waters means waters within the geographical limits prescribed for the purposes of this definition;
special personnel means all able bodied persons having some knowledge of safety procedures and the handling of safety equipment on board who are carried on board a vessel in connection with the special purpose of the vessel or because of the need to be on board because of special work being carried on in the vessel and does not include persons who are —
(a)members of the crew engaged in navigation, engineering or maintenance of the vessel or attached to the vessel to provide services for other persons on board; or
(b)directly or indirectly paying passengers;
specified, in relation to a direction (whether or not in writing), order, notice, regulation or other instrument or document under this Act, means specified in the direction, order, notice, regulation, instrument or document;
State waters means —
(a)the territorial sea adjacent to the State; and
(b)the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State; and
(c)waters within the limits of the State;
surveyor means a surveyor designated under section 117 for the purposes of this Act;
territorial sea has the meaning given in the Seas and Submerged Lands Act 1973 (Commonwealth) section 3(1);
trading ship means a ship that is used, or, being a ship in the course of construction, is intended to be used, for, or in connection with, any business or commercial activity and, without limiting the generality of the foregoing, includes a vessel that is used, or, being a vessel in the course of construction, is intended to be used, wholly or principally for —
(a)the carriage of passengers or cargo for hire or reward; or
(b)the provision of services to ships or shipping, whether for reward or otherwise,
but does not include a fishing vessel;
vessel, subject to subsection (2) —
(a)means, a craft for use, or that is capable of being used, in navigation by water, however propelled or moved; and
(b)includes an air‑cushion vehicle, a barge, a personal watercraft, a submersible and a wing‑in‑ground effect craft;
vessel information has the meaning given in section 107.
wages includes emoluments of any kind;
WA marine qualification means a qualification, including a licence, issued to a person under this Act that authorises the person to navigate a vessel (as defined in section 75AA(2)).
(2)The regulations may specify that a prescribed class of thing is or is not a class of vessel for the purposes of the definition of vessel in subsection (1).
[Section 3 amended: No. 35 of 1990 s. 4 and 21; No. 47 of 1993 s. 33(1); No. 57 of 1997 s. 130(1); No. 7 of 2004 s. 70; No. 55 of 2004 s. 1309; No. 24 of 2023 s. 39(2)‑(7); No. 31 of 2023 s. 4.]
3A.Vessels and crew to which Act applies
(1)Except as expressly provided otherwise in this Act, this Act applies to and in relation to the following vessels and their owners, masters, pilots and crew —
(a)a vessel in State waters;
(b)a vessel connected with the State, wherever it may be, other than a pleasure vessel or prescribed vessel while it is in the waters of another State or a Territory of the Commonwealth.
(2)For the purposes of this section, a vessel connected with the State includes a vessel that is —
(a)registered, or required to be registered, under this Act; or
(b)registered under the Shipping Registration Act 1981 (Commonwealth), with a home port in the State; or
(c)owned by a person who is ordinarily resident in the State; or
(d)owned by a person whose place of business, or principal place of business, is in the State; or
(e)owned by a person whose principal place of business for managing the vessel’s operations is in the State; or
(f)declared by the regulations to be a vessel connected with the State.
[Section 3A inserted: No. 24 of 2023 s 40; amended: No 31 of 2023 s. 5.]
3B.Relationship to Domestic Commercial Vessel National Law
(1)In this section —
applied provisions has the meaning given in the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 4(1);
Commonwealth domestic commercial vessel national law has the meaning given in the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 4(1);
Domestic Commercial Vessel National Law means —
(a)the Commonwealth domestic commercial vessel national law; and
(b)the applied provisions.
(2)The Domestic Commercial Vessel National Law prevails over this Act to the extent of any inconsistency.
[Section 3B inserted: No. 24 of 2023 s. 40.]
4.Act not to apply to naval ships etc.
This Act does not apply to or in relation to a vessel belonging to the naval, military or air forces of the Commonwealth or of any other country, including a foreign country.
This Act binds the Crown.
[Heading inserted: No. 24 of 2023 s. 42.]
[Heading inserted: No. 24 of 2023 s. 42.]
(1)In this Part —
evidential material means a thing that is relevant to an offence (within the meaning of subsection (2)) under this Act;
judicial officer means a magistrate;
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;
official details —
(a)of a police officer — means the officer’s surname and rank and, if the officer’s official details are required to be stated on a document, the officer’s registered number; and
(b)of an inspector — means the inspector’s full name and official title;
premises includes —
(a)a structure, building, vehicle, vessel or aircraft; and
(b)a place (whether or not enclosed or built on); and
(c)a part of a thing referred to in paragraph (a) or (b);
remote communication means any way of communicating at a distance, including by telephone, email and radio;
warrant means a warrant issued under section 26.
(2)For the purposes of the definition of evidential material, a thing is relevant to an offence if it is relevant to an offence as described in the Criminal Investigation Act 2006 section 5.
[Section 6 inserted: No. 24 of 2023 s. 42; amended: No. 31 of 2023 s. 6.]
[Heading inserted: No. 24 of 2023 s. 42.]
Subdivision 1 — Powers relating to vessels, exercisable without consent or warrant
[Heading inserted: No. 24 of 2023 s. 42.]
(1)An inspector may board a vessel, whether or not the vessel is underway, for 1 or both of the following purposes —
(a)determining whether this Act is being or has been complied with;
(b)exercising any of the powers under this Act that the inspector may exercise in relation to the vessel.
(2)The master of a vessel that an inspector proposes to board must take reasonable steps to facilitate the boarding if required by the inspector to do so.
Penalty for this subsection: a fine of $2 000.
(3)An inspector proposing to board a vessel may enter any premises that are not used as a residence to gain access to the vessel.
(4)If an inspector who boards a vessel or enters premises under this section fails to produce their identity card, or evidence that they are a police officer (if not in uniform), when requested to do so by the master of the vessel or by the occupier of the premises, the inspector —
(a)must leave the vessel or premises; and
(b)must not board the vessel or enter the premises again without producing their identity card or evidence that they are a police officer (if not in uniform).
[Section 7 inserted: No. 24 of 2023 s. 42.]
8.Requiring master of vessel to answer questions about vessel’s nature or operations
(1)An inspector may require the master of a vessel —
(a)to answer questions put by the inspector about the nature or operations of the vessel; and
(b)to produce for inspection any books, records or other documents about the nature or operations of the vessel requested by the inspector.
(2)A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) commits an offence.
Penalty for this subsection: a fine of $2 000.
[Section 8 inserted: No. 24 of 2023 s. 42.]
9.Powers in relation to vessels
(1)An inspector may exercise the powers under this section in relation to a vessel for the purposes of determining whether this Act is being or has been complied with.
(2)The inspector may, in relation to the vessel, do 1 or more of the following —
(a)search the vessel or anything on the vessel;
(b)examine or observe any activity conducted on the vessel;
(c)inspect, examine, take measurements of or conduct tests on the vessel or anything on or belonging to the vessel;
(d)take photographs, video recordings or other recordings of the vessel or anything on the vessel;
(e)without limiting section 18, require the production for inspection of any document on the vessel or issued or required to be held under this Act in relation to the vessel;
(f)take extracts from, or make copies of, any document produced under paragraph (e);
(g)take onto the vessel any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the vessel;
(h)require a person on the vessel to demonstrate the operation of machinery or equipment on the vessel;
(i)require a person on the vessel to give the inspector 1 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)require, by any reasonable means, the master of the vessel to do 1 or more of the following —
(i)stop or manoeuvre the vessel;
(ii)adopt or maintain a specified course or speed;
(iii)take the vessel to a specified place.
(3)The inspector may, when on board the vessel, operate electronic equipment on the vessel to determine whether the following contain information that is relevant to the purposes of this section —
(a)the equipment;
(b)an information storage device that —
(i)is on the vessel; and
(ii)can be used with the equipment or is associated with the equipment.
(4)If information that is relevant to the purposes of this section is found in the exercise of a power under this section, the inspector may, when on board or leaving the vessel, do 1 or more of the following —
(a)operate electronic equipment on the vessel to put the information in documentary form;
(b)operate electronic equipment on the vessel to transfer the information to an information storage device that —
(i)is brought onto the vessel for that purpose; or
(ii)is on the vessel and the use of which for that purpose has been agreed to in writing by the master of the vessel;
(c)remove the documents or information storage device from the vessel.
(5)The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(6)A power under subsection (2) may be exercised whether or not the inspector —
(a)is on board the vessel; or
(b)has reasonable grounds for suspecting that there may be evidential material on the vessel.
[Section 9 inserted: No. 24 of 2023 s. 42.]
10.Failing to comply with certain requirements under s. 9
(1)A person who, without reasonable excuse, fails to comply with a requirement under section 9(2)(e), (h), (i) or (j) commits an offence.
Penalty for this subsection: a fine of $5 000.
(2)A person commits an offence if, in response to a requirement made under section 9(2)(i), the person gives a false name, address or date of birth or false evidence of identity.
Penalty for this subsection: a fine of $5 000.
[Section 10 inserted: No. 24 of 2023 s. 42.]
11.Sampling, securing or seizing things found
(1)This section applies if —
(a)a thing is found during the exercise of a power under section 9 in relation to a vessel; and
(b)the inspector believes on reasonable grounds that —
(i)the thing is evidential material; and
(ii)1 or more of the powers under this section need to be exercised in order to prevent concealment, loss or destruction of the evidential material; and
(iii)the power or powers need to be exercised without a warrant either because of serious and urgent circumstances or because it is not practicable to obtain a warrant.
(2)The inspector may do 1 or more of the following —
(a)take a sample of the thing and remove the sample from the vessel;
(b)secure the thing for up to 72 hours;
(c)subject to subsection (3), seize the thing.
(3)If the thing is equipment or an information storage device that has been operated or used under section 9(3), the 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 9(4)(a) or to transfer all that evidential material as mentioned in section 9(4)(b); or
(b)the inspector believes on reasonable grounds that possession of the equipment or the information storage device could constitute an offence against a law of the State.
(4)In exercising a power under this section, the inspector must, as far as practicable, minimise damage to any property.
[Section 11 inserted: No. 24 of 2023 s. 42.]
Subdivision 2 — Powers relating to premises, exercisable with consent or under warrant
[Heading inserted: No. 24 of 2023 s. 42.]
(1)An inspector may enter any premises for the purposes of determining whether this Act is being or has been complied with.
(2)An inspector may enter any premises if the inspector has reasonable grounds for suspecting that there may be evidential material on the premises.
(3)Despite subsections (1) and (2), the inspector cannot enter the premises unless —
(a)entry is in accordance with the consent of the occupier of the premises, given under section 24, and, if requested to do so by the occupier, the inspector has produced their identity card or evidence that they are a police officer (if not in uniform); or
(b)the entry is made under a warrant.
Note for this subsection:
Division 4 includes provisions that deal with consent to entry and matters relating to entry under a warrant.
[Section 12 inserted: No. 24 of 2023 s. 42.]
13.Powers of inspectors in relation to premises
(1)An inspector may exercise the powers under this section in relation to premises entered under section 12 for the purposes of determining whether this Act is being or has been complied with (whether or not the inspector has reasonable grounds for suspecting that there may be evidential material on the premises).
(2)The inspector may, in relation to the premises, do 1 or more of the following —
(a)search the premises or anything on the premises;
(b)examine or observe any activity conducted on the premises;
(c)inspect, examine, take measurements of or conduct tests on anything on the premises;
(d)take photographs, video recordings or any other recordings of the premises or anything on the premises;
(e)inspect any document on the premises;
(f)take extracts from, or make copies of, any document inspected under paragraph (e);
(g)take onto the premises any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the premises.
(3)The inspector may, when on the premises, operate electronic equipment on the premises to determine whether the following contain information that is relevant to the purposes of this section —
(a)the equipment;
(b)an information storage device that —
(i)is on the premises; and
(ii)can be used with the equipment or is associated with the equipment.
(4)If information that is relevant to the purposes of this section is found in the exercise of a power under this section, the inspector may, when on or leaving the premises, do 1 or more of the following —
(a)operate electronic equipment on the premises to put the information in documentary form;
(b)operate electronic equipment on the premises to transfer the information to an information storage device that —
(i)is brought to the premises for that purpose; or
(ii)is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises;
(c)remove the document or information storage device from the premises.
(5)The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(6)The inspector may secure a thing on the premises for up to 72 hours if —
(a)the thing is found during the exercise of a power under this section in relation to the premises; and
(b)the inspector believes on reasonable grounds that —
(i)the thing is evidential material; 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.
[Section 13 inserted: No. 24 of 2023 s. 42.]
(1)An inspector may exercise the powers under this section in relation to premises entered under section 12 if the inspector has reasonable grounds for suspecting that there may be evidential material on premises.
(2)The inspector may, in relation to the premises, do 1 or more of the following —
(a)if entry to the premises is with the occupier’s consent — search the premises and anything on the premises for evidential material;
(b)if entry to the premises is under a warrant —
(i)search the premises and anything on the premises for evidential material of the kind specified in the warrant; and
(ii)seize evidential material of that kind;
(c)inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b) (whichever is relevant);
(d)take photographs, video recordings or any other recordings of the premises or evidential material referred to in paragraph (a) or (b) (whichever is relevant);
(e)take onto the premises any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the premises;
(f)require a person on the premises to demonstrate the operation of machinery or equipment on the premises.
(3)The inspector may, when on the premises, operate electronic equipment on the premises to determine whether the following contain evidential material referred to in subsection (2)(a) or (b) (whichever is relevant) —
(a)the equipment; or
(b)an information storage device that —
(i)is on the premises; and
(ii)can be used with the equipment or is associated with the equipment.
(4)If evidential material is found in the exercise of a power under this section, the inspector may, when on or leaving the premises, do 1 or more of the following —
(a)operate electronic equipment on the premises to put the evidential material in documentary form;
(b)operate electronic equipment on the premises to transfer the evidential material to an information storage device that —
(i)is brought to the premises for that purpose; or
(ii)is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises;
(c)remove the document or information storage device from the premises;
(d)if entry to the premises is under a warrant and the equipment or information storage device referred to in subsection (3) contains evidential material — seize the equipment or information storage device.
(5)The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(6)The inspector may seize the equipment or information storage device as mentioned in subsection (4)(d) only if —
(a)it is not practicable to put the evidential material in documentary form as mentioned in subsection (4)(a) or to transfer the evidential material to a device as mentioned in subsection (4)(b); or
(b)the inspector believes on reasonable grounds that possession of the equipment or information storage device by the occupier could constitute an offence against a law of the State.
(7)The inspector may seize a thing if —
(a)entry to the premises is under a warrant; and
(b)the inspector, in the course of searching for evidential material of the kind specified in the warrant, finds the thing and the inspector believes on reasonable grounds that the thing is 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.
(8)A person who, without reasonable excuse, fails to comply with a requirement under subsection (2)(f) commits an offence.
Penalty for this subsection: a fine of $5 000.
[Section 14 inserted: No. 24 of 2023 s. 42.]
15.Failing to comply with certain requirements of inspectors
(1)An inspector who is on premises that the inspector has entered under a warrant may require any person on the premises to —
(a)answer any questions put by the inspector; and
(b)produce for inspection any books, records or documents requested by the inspector.
(2)A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) commits an offence.
Penalty for this subsection: a fine of $5 000.
[Section 15 inserted: No. 24 of 2023 s. 42.]
16.Using force in executing warrant
In executing a warrant, an inspector may use any force against persons and things that is necessary and reasonable in the circumstances.
[Section 16 inserted: No. 24 of 2023 s. 42.]
17.Relationship with Subdivision 1
(1)This Subdivision does not limit Subdivision 1.
(2)Subdivision 1 does not prevent this Subdivision from applying to premises that are vessels.
[Section 17 inserted: No. 24 of 2023 s. 42.]
Subdivision 3 — Requiring certain documents under Act to be produced for inspection
[Heading inserted: No. 24 of 2023 s. 42.]
18.Requiring certain documents to be produced for inspection
(1)An inspector may, in the exercise of a power under this Act, require a person to produce for inspection any licence, permit, certificate or other document issued to or required to be held by the person under this Act.
(2)A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) commits an offence.
Penalty for this subsection: a fine of $5 000.
(3)An inspector may take an extract from, or make a copy of, a document produced under subsection (1).
[Section 18 inserted: No. 24 of 2023 s. 42.]
Division 3 — Directions and improvement notices
[Heading inserted: No. 24 of 2023 s. 42.]
(1)An inspector may give a person a direction requiring the person to take any action that is reasonable in the circumstances if the inspector believes on reasonable grounds that —
(a)the person is contravening, or likely to contravene, a provision of this Act; or
(b)it is desirable in the public interest for the inspector to give the person the direction.
(2)An inspector may give a person a direction requiring the person to take any action that is reasonable in the circumstances if, in relation to the use of State waters or in relation to a vessel, an inspector believes on reasonable grounds that it is necessary to give the person the direction in order to protect the safety of people or to protect the environment.
(3)Without limiting subsection (1) or (2), a direction may require the person given the direction to ensure that —
(a)a specified vessel is not operated; or
(b)a specified vessel is moved from, or taken to, a specified place; or
(c)a specified activity is or is not engaged in; or
(d)a specified activity is or is not engaged in, in a specified manner or at a specified place.
(4)A person given a direction under subsection (1) or (2) must comply with it.
Penalty for this subsection: a fine of $5 000.
[Section 19 inserted: No. 24 of 2023 s. 42.]
20.Directions under s. 19: procedural details
(1)A direction under section 19 must —
(a)be given in writing, unless the inspector believes on reasonable grounds that there is an urgent need to protect the safety of people or to protect the environment; and
(b)specify the period within which the action must be taken; and
(c)include the inspector’s reasons for giving the direction.
(2)The direction may include specified steps that the person given the direction must take to satisfy the inspector that the action required to be taken to comply with the direction has been taken.
(3)Before the end of the period specified in a direction, an inspector may extend the period in writing and, in that case, the references in sections 19 and 21 to the period specified are references to that period as extended under this subsection.
[Section 20 inserted: No. 24 of 2023 s. 42.]
21.Directions under s. 19: inspector may remedy failure to comply
(1)If a person given a direction under section 19 does not take the action specified in the direction within the period specified, an inspector may take the action or arrange for it to be taken.
(2)The inspector may do all things necessary for the purposes of subsection (1).
(3)The chief executive officer may recover the reasonable costs and expenses incurred under subsection (1) from the person given the direction and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction.
[Section 21 inserted: No. 24 of 2023 s. 42.]
(1)An inspector may give a notice under this section (an improvement notice) to a person if the inspector believes on reasonable grounds that the person —
(a)is contravening a provision of this Act; or
(b)has contravened a provision of this Act and is likely to contravene that provision again.
(2)The inspector must specify in the notice —
(a)the provision that the inspector believes is being or is likely to be contravened; and
(b)the reasons for that belief; and
(c)that the person given the notice must take action to remedy or prevent the contravention; and
(d)the period within which the person must comply with the notice.
(3)The inspector may specify in the notice any action the person must or must not take during the period specified in the notice.
(4)Before the end of the period specified in the notice, an inspector may extend the period in writing.
(5)A person given an improvement notice must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control.
Penalty for this subsection: a fine of $5 000.
[Section 22 inserted: No. 24 of 2023 s. 42.]
23.Improvement notices given in relation to vessels
(1)A person given an improvement notice under section 22(1) in relation to a vessel must ensure that a copy of the notice is displayed —
(a)as directed by the inspector who issued the notice; or
(b)if there is no such direction — in a prominent place on or near the vessel.
Penalty for this subsection: a fine of $2 000.
(2)The inspector who gave the notice referred to in subsection (1) must give a copy of the notice to each of the following persons, unless the person has been given the notice under section 22(1) —
(a)the owner of the vessel; and
(b)the master of the vessel.
(3)A failure to comply with subsection (2) does not affect the validity of the notice.
(4)A person must not, without reasonable excuse —
(a)tamper with a notice displayed under subsection (1); or
(b)remove a notice displayed under subsection (1) before the notice has ceased to have effect.
Penalty for this subsection: a fine of $2 000.
[Section 23 inserted: No. 24 of 2023 s. 42.]
Division 4 — General provisions relating to powers under Part
[Heading inserted: No. 24 of 2023 s. 42.]
Subdivision 1 — General matters concerning entry and exercise of powers
[Heading inserted: No. 24 of 2023 s. 42.]
(1)For the purposes of section 12(3)(a), a person gives consent to entry to premises by an inspector if the person consents after being informed by the inspector —
(a)of the power of entry that the inspector wants to exercise in respect of the premises; and
(b)of the reason why the inspector wants to exercise the power; and
(c)that the person can refuse to consent to the inspector entering the premises.
(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 and, if so, the consent has effect for that period unless the consent is withdrawn, or the purposes of the entry are fulfilled, before the end of that period.
(4)A consent that is not limited to a period has effect until the consent is withdrawn or the purposes of the entry are fulfilled.
(5)If an inspector enters premises under section 12 with the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises as soon as practicable after the consent ceases to have effect.
[Section 24 inserted: No. 24 of 2023 s. 42.]
25.Premises with 2 or more occupiers
If under this Part any information must be given to, or consent may be obtained from, or any thing must be done in respect of, the occupier of premises, then in a case where there are 2 or more occupiers of the premises, it is sufficient to give the information to, or obtain consent from, or do the thing in respect of, any 1 of the occupiers.
[Section 25 inserted: No. 24 of 2023 s. 42.]
[Heading inserted: No. 24 of 2023 s. 42.]
(1)An inspector may apply in person to a judicial officer for a warrant in relation to premises.
(2)The judicial officer may issue the warrant if satisfied, by information on oath, 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 judicial officer must not issue the warrant unless the inspector or some other person has given to the judicial officer, either orally or by affidavit, any further information that the judicial officer may require concerning the grounds on which the issue of the warrant is 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)state the kind of evidential material that may be searched for under the warrant; and
(e)state the inspector’s official details; and
(f)authorise the inspector to enter the premises for the purposes of this Part; and
(g)state that the inspector may exercise powers under this Part in relation to the premises; and
(h)state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and
(i)specify the day, not more than 1 week after the issue of the warrant, on which the warrant ceases to be in force.
(5)A warrant must be in the prescribed form.
[Section 26 inserted: No. 24 of 2023 s. 42.]
27.Warrants applied for remotely
(1)An inspector may apply, by remote communication, to a judicial officer for a warrant under section 26 —
(a)in an urgent case; or
(b)if the inspector believes on reasonable grounds that a judicial officer is not available within a reasonable distance of the inspector.
(2)The judicial officer must not grant the warrant unless satisfied as to the matter in subsection (1)(a) or (b) (whichever is relevant).
(3)The Criminal Investigation Act 2006 section 13(5) to (8) applies in relation to an application under this section.
[Section 27 inserted: No. 24 of 2023 s. 42.]
28.Entry under warrant: rights of occupier
(1)An inspector must, before entering premises under a warrant —
(a)announce that they are authorised to enter the premises; and
(b)give any person at the premises an opportunity to allow entry to the premises.
(2)If the occupier is present when it is proposed to enter premises under a warrant, the inspector must, before the entry is made —
(a)if they are not a police officer — identify themselves to the occupier by producing their identity card; and
(b)if they are a police officer who is not in uniform — identify themselves to the occupier by producing evidence that they are a police officer; and
(c)inform the occupier that it is proposed to enter the premises; and
(d)make a copy of the warrant available to the occupier; and
(e)inform the occupier of their rights and responsibilities under this Subdivision.
(3)However, an inspector need not comply with subsections (1) and (2) if the inspector 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.
(4)If subsections (1) and (2) are not fully complied with before premises are entered, then as soon as practicable after the premises are entered, they must be complied with to the extent relevant.
(5)If premises entered are unoccupied, the inspector must leave the following in a prominent position at the premises before leaving —
(a)a notice stating —
(i)the inspector’s official details; and
(ii)that the premises have been entered;
(b)a copy of the warrant completed in accordance with section 32(2).
(6)The copy of a warrant given or left under this section must omit the name of the judicial officer who issued it.
[Section 28 inserted: No. 24 of 2023 s. 42.]
29.Inspector must be in possession of warrant
While a warrant is being executed in relation to premises, the inspector executing the warrant must be in possession of the warrant or a copy of it.
[Section 29 inserted: No. 24 of 2023 s. 42.]
30.Occupier entitled to observe execution of warrant
(1)The occupier of premises in relation to which a warrant is being executed is, if the occupier is present at the time of its execution, 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.
[Section 30 inserted: No. 24 of 2023 s. 42.]
31.Occupier to provide inspector with facilities and assistance
(1)The occupier of premises to which a warrant relates must provide an inspector executing the warrant, and any person assisting the inspector, with all reasonable facilities and assistance for the effective exercise of their powers.
(2)A person who fails to comply with subsection (1) commits an offence.
Penalty for this subsection: a fine of $5 000.
[Section 31 inserted: No. 24 of 2023 s. 42.]
(1)A warrant may be executed by the inspector to whom it was issued or by another inspector authorised for that purpose by the chief executive officer.
(2)On completing the execution of a warrant, the inspector in charge of executing the warrant must record the following matters on it —
(a)the inspector’s official details;
(b)the date and time when the warrant was executed;
(c)any other matter that is prescribed.
[Section 32 inserted: No. 24 of 2023 s. 42.]
33.Completing execution of warrant after temporary cessation
(1)This section applies if an inspector temporarily ceases executing a warrant and, with all persons assisting the inspector, leaves the premises.
(2)The inspector may complete the execution of the warrant if —
(a)the warrant is still in force; and
(b)1 of the following applies —
(i)the inspector and persons assisting are absent from the premises for not more than 1 hour;
(ii)if there is an emergency — the inspector and persons assisting are absent from the premises for not more than 12 hours or any longer period allowed by a judicial officer under subsection (5);
(iii)the occupier of the premises consents in writing.
(3)An inspector may apply to a judicial officer for an extension of the 12‑hour period mentioned in subsection (2)(b)(ii) if —
(a)there is an emergency; and
(b)the inspector believes on reasonable grounds that the inspector will not be able to return to the premises within the 12‑hour period.
(4)If it is practicable to do so, the inspector must, before making the application, give notice to the occupier of the premises of their intention to apply for an extension.
(5)The judicial officer may extend the period during which the inspector and persons assisting may be absent from the premises if —
(a)the judicial officer is satisfied, by information on oath, that there are exceptional circumstances that justify the extension; and
(b)the extension would not result in the period ending after the warrant ceases to be in force.
[Section 33 inserted: No. 24 of 2023 s. 42.]
34.Completing execution of warrant stopped by court order
An inspector 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; and
(b)the warrant is still in force when the order is revoked or reversed.
[Section 34 inserted: No. 24 of 2023 s. 42.]
Subdivision 3 — Securing things
[Heading inserted: No. 24 of 2023 s. 42.]
35.Electronic equipment may be secured pending expert assistance to operate it
(1)This section applies if an inspector believes on reasonable grounds that —
(a)on premises to which a warrant relates, there is information (relevant information) relevant to determining whether there is evidential material on the premises; and
(b)the relevant information may be accessed by operating electronic equipment on the premises; and
(c)expert assistance is required to operate the equipment; and
(d)the relevant information may be destroyed, altered or otherwise interfered with if the inspector does not take action under this section.
(2)The inspector 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 inspector must give notice to the occupier of the premises of their intention to secure the equipment and of the fact that the equipment may be secured for up to 72 hours.
[Section 35 inserted: No. 24 of 2023 s. 42.]
36.Extending period for which something is secured
(1)If an inspector believes on reasonable grounds that a thing needs to be secured under section 11(2)(b), 13(6) or 35(2) for more than 72 hours, the inspector may apply to a judicial officer for an extension of that period.
(2)The 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, and the occupier is entitled to be heard in relation to that application.
(3)The provisions of Subdivision 2 relating to the issue of warrants apply, with necessary modifications, to the granting of an extension.
(4)The 72‑hour period may be extended more than once.
[Section 36 inserted: No. 24 of 2023 s. 42.]
37.Interfering with securing of things
A person commits an offence if —
(a)an inspector is securing, or has secured, a thing under section 11(2)(b), 13(6) or 35(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: a fine of $10 000.
[Section 37 inserted: No. 24 of 2023 s. 42.]
Subdivision 4 — Seizing and detaining things
[Heading inserted: No. 24 of 2023 s. 42.]
38.Copies of seized things to be provided
(1)This section applies if, under this Part, an inspector seizes 1 or more of the following —
(a)a document, film, computer file or other thing that can be readily copied;
(b)an information storage device from which information can be readily copied.
(2)The occupier of the premises may request the inspector to give a copy of the thing or the information to the occupier.
(3)The inspector must comply with the request as soon as practicable after the seizure.
(4)However, the inspector is not required to comply with the request if the inspector believes on reasonable grounds that possession of the thing or information by the occupier constitutes an offence against a law of the State or another Australian jurisdiction.
[Section 38 inserted: No. 24 of 2023 s. 42.]
(1)If a thing is seized under this Part, an inspector must provide a receipt for the thing.
(2)If 2 or more things are seized, they may be covered in the 1 receipt.
[Section 39 inserted: No. 24 of 2023 s. 42.]
(1)An 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.
(2)Subsection (1) —
(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 State; or
(ii)is the subject of a dispute as to ownership.
(3)An inspector need not take steps to return a thing because of subsection (1)(c) if —
(a)proceedings in respect of which the thing may afford evidence commenced before the end of the period referred to in subsection (1)(c) and have not been completed, including an appeal to a court in relation to those proceedings; or
(b)the thing may be retained under an order under section 41; or
(c)the State, the chief executive officer or an inspector is otherwise authorised, by a law or an order of a court, to retain, destroy, dispose of or otherwise deal with the thing.
(4)A thing that is required to be returned under this section must be returned —
(a)to the person from whom it was seized; or
(b)if the person from whom it was seized is not entitled to possess the thing — to the owner of the thing.
[Section 40 inserted: No. 24 of 2023 s. 42.]
41.Judicial officer may permit seized things to be retained
(1)An inspector may apply to a judicial officer for an order permitting the retention of a thing seized under this Part if —
(a)proceedings in respect of which the thing may afford evidence have not been commenced; and
(b)the application is made before the expiry of —
(i)the period referred to in section 40(1)(c); or
(ii)a previous order under this section.
(2)The judicial officer may order that the thing may be retained for the period specified in the order if satisfied that it is necessary for the thing to be retained —
(a)for the purposes of an investigation in respect of an offence under this Act; or
(b)to enable evidence of an offence under this Act to be secured for the purposes of a prosecution.
(3)The total period for which a thing may be retained must not exceed 3 years.
(4)Before making an application under subsection (1), the inspector must —
(a)take reasonable steps to discover who has an interest in the thing or the retention of the thing; and
(b)if it is practicable to do so, notify each person the inspector believes to have such an interest of the proposed application.
[Section 41 inserted: No. 24 of 2023 s. 42.]
42.Forfeiture and disposal of seized things
(1)This section applies to a thing seized under this Part if an inspector has taken reasonable steps to return the thing to a person and 1 of the following applies —
(a)the inspector has been unable to locate the person, despite making reasonable efforts;
(b)the person has refused to take possession of the thing;
(c)the inspector has contacted the person about the return of the thing, and the person has not taken possession of the thing within 3 months after being contacted or any longer period agreed to in writing by the inspector.
(2)The chief executive officer may declare, by order published in the Gazette, that the thing is forfeited to the State.
(3)A thing that is the subject of a declaration under subsection (2) is forfeited to the State.
(4)The Criminal and Found Property Disposal Act 2006 applies to the disposal of a thing that is forfeited to the State under this section.
Note for this subsection:
The Department is a prescribed agency for the purposes of the Criminal and Found Property Disposal Act 2006; see section 124F.
[Section 42 inserted: No. 24 of 2023 s. 42.]
[43‑56.Deleted: No. 24 of 2023 s. 42.]
Part 3 — Marine powers and duties
[Heading inserted: No. 24 of 2023 s. 43.]
57.General powers to stop and search vessels
(1)For the purposes of this Act and in addition to any particular powers conferred by or under this Act, an inspector may order a vessel to be stopped and may go on board, inspect and search a vessel and may detain the vessel for so long as is necessary for the purposes of inspection and search.
(2)An official of the Department, a person engaged to act on behalf of the Department, an authorised person, an inspector and a surveyor appointed under this Act may —
(a)at all reasonable times go on board any vessel to which any of the provisions of this Act extend, for the purpose of examining the hull, boilers and machinery, and making any report thereon required for the purposes of this Act; and
(b)inspect any boats, equipment, or materials on board or belonging to any such vessel; and
(c)go on board and inspect any such vessel for the purpose of inquiring into or reporting upon the nature and causes of any casualty which the vessel has sustained or caused, or is alleged to have sustained or caused; and
(d)require the production of and inspect any licence, permit, certificate or other document issued, or required to be issued, in connection with the ownership, use, or navigation of the vessel; and
(e)inspect the vessel and any machinery, equipment, or article —
(i)that is required by or under this Act to be carried in or on board the vessel; or
(ii)the condition of which could affect the seaworthiness of the vessel.
58.Power to inspect logs and muster crew
(1)Where there is reason to suspect that this Act or the regulations are not complied with, an inspector or authorised person may —
(a)require the owner, master, or any person on board a commercial vessel to produce any official logbook, ship’s logbook, engineroom logbook and other documents relating to any member of the crew of the vessel, in their respective possession or control; and
(b)require the master of a commercial vessel to produce a list of all persons on board his ship; and
(c)take copies of such logbooks and documents or of any part thereof; and
(d)muster the crew of any such ship; and
(e)summon the master to appear and give any explanation concerning such ship or her crew and such logs and documents.
(2)A person who —
(a)upon requisition made under subsection (1) refuses or neglects to produce or to permit inspection and copying of any logbook or other document; or
(b)impedes any mustering of the crew; or
(c)refuses or neglects to give any explanation which he is required to give under subsection (1); or
(d)knowingly misleads or deceives any person authorised by subsection (1) to require an explanation,
is guilty of an offence.
Penalty: $1 000.
58A.Compensation in respect of false distress signals
The master of a vessel who uses or displays, or causes or permits any person to use or display, any of the signals of distress, except where the vessel is in distress, is liable to pay compensation and costs incidental thereto, recoverable in any court of competent jurisdiction, for any labour undertaken, risk incurred, or loss sustained in consequence of the signal having been regarded as a genuine signal of distress.
[Section 58A inserted: No. 35 of 1990 s. 11; amended: No 24 of 2023 s. 45.]
58B.Offence to take unsafe ship to sea
(1)A person shall not send or take a vessel to sea if the vessel is an unsafe ship.
Penalty: $5 000.
(2)It is a defence in a prosecution for an offence against subsection (1) to show —
(a)that the person charged used all reasonable means to ensure that the vessel was not an unsafe ship; or
(b)that the sending or taking of the vessel to sea was, in the circumstances, reasonably justified for the purposes of protecting the vessel from imminent danger.
(3)The fact that an unsafe ship has been detained under section 61 is not a bar to proceedings under this section.
(4)A vessel is an unsafe ship for the purposes of this section if by reason of —
(a)the defective condition of a part of the vessel; or
(b)the overloading or improper loading of the vessel; or
(c)the undermanning of the vessel,
the vessel is unfit to proceed on its proposed voyage without risk of injury or danger to human life.
(5)No proceedings for an offence against subsection (1) shall be brought without the consent of the chief executive officer.
[Section 58B inserted: No. 35 of 1990 s. 11.]
[59.Deleted: No. 31 of 2023 s. 9.]
60.Penalty for unlawfully assuming control
Subject to this Act, a person shall not, without the consent of the owner or master of a vessel, navigate or otherwise assume control of the vessel or interfere with the vessel, its equipment, or moorings.
Penalty: a fine of $5 000.
[Section 60 amended: No. 24 of 2023 s. 48.]
61.Power to detain unsafe pleasure or prescribed vessels
(1)The chief executive officer may detain a pleasure vessel or prescribed vessel and bring it, or cause it to be brought, to a port or to another place that the chief executive officer considers appropriate, if the chief executive officer believes on reasonable grounds that the vessel is an unsafe vessel.
(2)If a vessel is detained under subsection (1), the chief executive officer must give written notice (the initial notice), within 7 days after the day on which the vessel was detained, to —
(a)the master of the vessel; or
(b)if the master of the vessel cannot be located — the person who had possession or control of the vessel immediately before it was detained.
(3)The notice must —
(a)identify the vessel; and
(b)state that the vessel has been detained because it is believed to be an unsafe vessel; and
(c)specify the grounds for that belief; and
(d)provide the contact details of an officer of the Department who can provide further information.
(4)The chief executive officer must, within 21 days after the day on which the vessel was detained, do 1 of the following —
(a)designate a person under section 63(2) to inspect the vessel and provide a report on it;
(b)give a further notice to the person given the initial notice specifying —
(i)the conditions that the chief executive officer determines are required to be complied with before the vessel may be released from detention and returned; and
(ii)the period (which cannot be less than 3 months) within which those conditions are to be complied with;
(c)authorise the vessel to be released from detention and returned.
(5)The chief executive officer may enter into a written contract for the provision of services relating to —
(a)bringing a vessel detained under this section, or causing it to be brought, to a port or other place under subsection (1); or
(b)storing a vessel detained under this section.
[Section 61 inserted: No. 24 of 2023 s. 49.]
62.Detained vessels: unauthorised operation
(1)A person commits an offence if —
(a)the person operates a detained vessel, or causes or permits the operation of a detained vessel; and
(b)the vessel has not been released from detention; and
(c)the chief executive officer has not authorised the person to operate the vessel.
Penalty for this subsection: a fine of $5 000.
(2)It is a defence in a prosecution for an offence against subsection (1) to show that the operation of the vessel was, in the circumstances, reasonably justified for the purposes of protecting the vessel from imminent danger.
[Section 62 inserted: No. 24 of 2023 s. 49.]
63.Detained vessels: inspection
(1)In this section —
designated person means an officer of the Department or another person designated under subsection (2).
(2)The chief executive officer may designate an officer of the Department or another person to inspect a detained vessel and provide a report on the vessel to the chief executive officer.
(3)The chief executive officer must, within 14 days after the day on which a report is provided under subsection (2), do 1 of the following —
(a)give a further notice to the person given the initial notice (under section 61(2)) in relation to the vessel specifying —
(i)the conditions that the chief executive officer determines are required to be complied with before the vessel may be released from detention and returned; and
(ii)the period (which cannot be less than 3 months) within which those conditions are to be complied with;
(b)authorise the vessel to be released from detention and returned.
(4)The designated person has, for the purpose of inspecting a detained vessel, the powers of an inspector under sections 7 and 9.
(5)For the purposes of subsection (4) —
(a)sections 7 and 9 apply as if references in them to an inspector were references to the designated person; and
(b)section 7(4) applies as if the reference in that subsection to an inspector failing to produce their identity card were a reference to a designated person failing to produce evidence of their designation under subsection (2); and
(c)section 10 applies for the purposes of section 9, as applied by paragraph (a).
(6)The designated person may authorise other persons to assist in the exercise of the designated person’s powers under this section.
[Section 63 inserted: No. 24 of 2023 s. 49.]
(1)The chief executive officer must authorise a detained vessel to be released from detention and returned if satisfied that —
(a)the vessel is not an unsafe vessel; or
(b)the grounds for the belief that the vessel was an unsafe vessel, specified in the initial notice (under section 61(2)) in relation to the vessel, no longer apply; or
(c)the conditions specified in a notice under section 61(4)(b) or 63(3)(a) in relation to the vessel have been complied with.
(2)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 a detained vessel; and
(b)the person to whom a detained vessel must be returned.
[Section 63A inserted: No. 24 of 2023 s. 49.]
63B.Detained vessels: forfeiture and disposal
(1)This section applies to a detained vessel if the chief executive officer has taken the steps required by regulations under section 63A(2) to return the vessel to a person and 1 of the following applies —
(a)the chief executive officer has been unable to locate the person, despite making reasonable efforts;
(b)the person has refused to take possession of the vessel;
(c)the chief executive officer has contacted the person about the return of the vessel, and the person has not taken possession of the vessel within 3 months after being contacted or any longer period agreed to in writing by the chief executive officer.
(2)This section applies to a detained vessel if the conditions specified in a notice given under section 61(4)(b) or 63(3)(a) in relation to the vessel have not been complied with within the period specified in the notice or any longer period agreed to in writing by the chief executive officer.
(3)The chief executive officer may declare, by order published in the Gazette, that the vessel is forfeited to the State.
(4)A vessel that is the subject of a declaration under subsection (3) is, subject to section 63C, forfeited to the State.
(5)The Criminal and Found Property Disposal Act 2006 applies to the disposal of a vessel that is forfeited to the State under this section.
Note for this subsection:
The Department is a prescribed agency for the purposes of the Criminal and Found Property Disposal Act 2006; see section 124F.
[Section 63B inserted: No. 24 of 2023 s. 49.]
63C.SAT review of decision to detain vessel or forfeiture declaration
(1)In this section —
decision means 1 of the following —
(a)a decision under section 61(1) to detain a vessel;
(b)a notice under section 61(4)(b) or 63(3)(a) given in relation to a vessel;
(c)a declaration under section 63B(3) that a vessel is forfeited to the State.
(2)A person aggrieved by a decision may apply to the State Administrative Tribunal for a review of the decision.
[Section 63C inserted: No. 24 of 2023 s. 49.]
64.Marine incidents: terms used
In this section and sections 64A, 64B and 64D —
contact details, of a person, means the name and other prescribed details of the person;
identification details, of a vessel, means each of the following, to the extent relevant —
(a)the jurisdiction in which the vessel is registered;
(b)the name of the vessel;
(c)the registration number of the vessel;
(d)the contact details of the owner of the vessel (if known);
marine incident has the meaning given by the definition of that term in the Scheduled Domestic Commercial Vessel National Law section 6, as if —
(a)references in that definition to a domestic commercial vessel were references to a vessel; and
(b)paragraph (i) of that definition were omitted.
[Section 64 inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 10.]
(1)If a vessel is involved in a marine incident, the master of the vessel must do each of the following, to the extent that they can do so without endangering their vessel, crew or passengers (if any) —
(a)stand by to render assistance to persons or other vessels involved in the incident until satisfied that there is no need or no further need to render assistance;
(b)render assistance to persons and other vessels involved in the incident;
(c)give to any person injured as a result of the incident, and to the master or owner of any other vessel involved in the incident —
(i)the master’s contact details; and
(ii)the identification details of their vessel.
(2)The master of a vessel commits a crime if —
(a)the vessel is involved in a marine incident that occasions the death of, or grievous bodily harm or bodily harm to, a person; and
(b)the master, without reasonable excuse, fails to comply with subsection (1)(a) or (b) in relation to the incident.
Penalty for this subsection:
(a)if the marine incident occasions the death of a person — imprisonment for 20 years;
(b)if the marine incident occasions grievous bodily harm to a person — imprisonment for 14 years;
(c)if the marine incident occasions bodily harm to a person — imprisonment for 10 years.
Summary conviction penalty for this subsection in a case in which the marine incident does not occasion the death of, or grievous bodily harm to, a person: imprisonment for 3 years.
(2A)A court sentencing a person for an offence against subsection (2) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows —
(a)if the marine incident occasions the death of, or grievous bodily harm to, a person — for a period of not less than 2 years;
(b)if the marine incident occasions bodily harm to a person — for a period of not less than 12 months.
(3)The master of a vessel commits an offence if the master, without reasonable excuse, fails to comply with subsection (1)(a), (b) or (c).
Penalty for this subsection: a fine of $5 000.
(4)For the purposes of this section, to render assistance to a person or vessel is to assist to the extent that the assistance is practicable and necessary to save the person or vessel from danger resulting from the incident.
[Section 64A inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 11.]
64B.Marine incidents: reporting
(1)This section applies if a vessel is involved in a marine incident and 1 or more of the following result —
(a)a person is injured or dies;
(b)the vessel sustains damage affecting its seaworthiness;
(c)another vessel is lost or sustains damage affecting its seaworthiness.
(2)The master and the owner of the vessel must, as soon as practicable after becoming aware of the incident, give a report (which need not be in writing) to the chief executive officer that includes each of the following —
(a)particulars of the incident and its possible cause;
(b)the contact details of the master and the owner;
(c)the identification details of the vessel;
(d)the present position of the vessel (where practicable);
(e)details of the marine qualifications of the master.
(3)However, if either of the master or owner of the vessel complies with subsection (2), the other need not comply with subsection (2).
(3A)A person commits a crime if —
(a)the person is the master or owner of a vessel; and
(b)the vessel is involved in a marine incident that occasions the death of, or grievous bodily harm or bodily harm to, another person; and
(c)the person, without reasonable excuse, fails to comply with subsection (2) in relation to the incident.
Penalty for this subsection:
(a)if the marine incident occasions the death of, or grievous bodily harm to, a person — imprisonment for 10 years;
(b)if the marine incident occasions bodily harm to a person — imprisonment for 12 months.
Summary conviction penalty for this subsection in a case in which the marine incident occasions the death of, or grievous bodily harm to, a person: imprisonment for 12 months.
(3B)A court sentencing a person for an offence against subsection (3A) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 12 months.
(3C)A person commits an offence if —
(a)the person is the master or owner of a vessel; and
(b)the person, without reasonable excuse, fails to comply with subsection (2).
Penalty for this subsection: a fine of $2 000.
(4)The master and owner of the vessel must, within 72 hours after becoming aware of the incident, give a written report to the chief executive officer, in a form and manner approved by the chief executive officer, that —
(a)contains all of the details referred to in subsection (2), and any other relevant details required by the form; and
(b)confirms any report given under subsection (2).
Penalty for this subsection: a fine of $2 000.
(5)However, if either of the master or owner of the vessel complies with subsection (4), the other need not comply with subsection (4).
[Section 64B inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 12.]
64C.Marine incidents: preserving evidence
(1)This section applies in relation to a vessel if section 64B applies in relation to the vessel.
(2)The master of the vessel must take all reasonable steps to ensure the preservation of any material that may be relevant to an investigation of the incident.
Penalty for this subsection: a fine of $5 000.
(3)The owner of the vessel must take all reasonable steps to ensure the preservation of any material that may be relevant to an investigation of the incident.
Penalty for this subsection: a fine of $5 000.
(4)A person on board the vessel must not interfere with any material that may be relevant to an investigation of the incident.
Penalty for this subsection: a fine of $5 000.
[Section 64C inserted: No. 24 of 2023 s. 49.]
64D.Marine incidents: power to require responsible person to give information
(1)In this section —
responsible person, in relation to a vessel, means —
(a)the master or owner of the vessel; or
(b)another person who appears to be in possession or control of the vessel.
(2)This section applies if a vessel is involved in a marine incident.
(3)An inspector or police officer may require a responsible person for the vessel to give the inspector or police officer any information that —
(a)is in the responsible person’s power to give; and
(b)may assist in identifying a person who was the master of the vessel, or operating or attempting to operate the vessel (as defined in section 75AA(1)), when the marine incident occurred.
(4)A person who, without reasonable excuse, fails to comply with a requirement under subsection (3) commits an offence.
Penalty for this subsection:
(a)if the marine incident occasions the death of, or grievous bodily harm or bodily harm to, a person — imprisonment for 12 months or a fine of $3 000;
(b)otherwise — a fine of $3 000.
[Section 64D inserted: No. 31 of 2023 s. 13.]
(1)The Minister may grant a licence to any person conferring on that person the right to use, exclusively or in common with another person or other persons, the waters specified in the licence for the purpose of mooring vessels.
(2)A licence may be granted under this section upon such terms and subject to such conditions as the Minister thinks fit.
(1)Where the chief executive officer is satisfied that for reasons of safety or by reason of an emergency it is expedient that any State waters should be closed to navigation or closed to navigation by vessels of a particular type or class, the chief executive officer may by order close those waters to navigation accordingly and effect shall be given to such an order in accordance with its terms.
(2)An order under subsection (1) —
(a)may be served on the master of a vessel; and
(b)shall be published for general information in such part of the State as is likely to be affected by the order as soon as practicable and in such manner as the chief executive officer considers likely to be appropriate having regard to the circumstances and what may be practicable; and
(c)may be varied, renewed or cancelled by subsequent order so made; and
(d)has effect and the force of law in relation to the waters therein specified on and from the time of the making of the order, or such other subsequent time as is specified in the order, and may be made so as to apply only to the period specified in the order or without specifying any such period; and
(e)may be made so as to be unconditional and so as to apply to any vessel, or so as to provide, whether subject to conditions or unconditionally, that specified persons or vessels may be exempted; and
(f)may confer a discretionary authority on any person therein specified.
(3)A person who —
(a)obstructs any person acting in accordance with a power, authority or discretion conferred under this section; or
(b)knowingly navigates a vessel in contravention of an order made and published under this section,
is guilty of an offence.
Penalty for this subsection: a fine of $5 000.
(4)The variation or cancellation of an order made under this section does not affect any penalty or punishment incurred, imposed, or liable to be incurred or imposed, prior to that variation or cancellation, or any investigation or legal proceedings in respect of such a penalty or punishment, notwithstanding any other enactment.
[(5)deleted]
[Section 66 amended: No. 35 of 1990 s. 13 and 21; No. 78 of 1995 s. 137; No. 24 of 2023 s. 50.]
(1)The chief executive officer may by order published in the Gazette limit the speed at which vessels may be navigated in any State waters specified in the order.
(2)An order published under subsection (1) may —
[(a)deleted]
(b)apply to vessels generally or to a particular vessel or class of vessels; and
(c)be of general application or may apply only in relation to the time, place and circumstances specified in the order; and
(d)be varied or cancelled by a further order published in the Gazette.
(3)A person who causes, permits or suffers a vessel to be navigated contrary to an order published under this section commits an offence.
Penalty for this subsection: a fine of $2 000.
[Section 67 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 51.]
(1)The Minister may, by notice published in the Gazette, approve of types of apparatus for ascertaining the speed at which a vessel is moving and may, by notice so published, revoke any such approval.
(2)In any proceeding for an offence against this or any other Act or regulations made thereunder evidence may be given of the use of speed measuring equipment by an inspector in relation to a vessel and of the speed at which that vessel was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vessel was moving at the time of the use of that equipment in relation to that vessel.
(3)In any proceeding of the kind mentioned in subsection (2), evidence by an inspector that apparatus used by him was speed measuring equipment within the meaning of this section is prima facie evidence of that fact.
(4)Nothing in this section shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act or regulations made thereunder.
(5)In this section —
speed measuring equipment means apparatus of a type approved by the Minister under subsection (1).
69.Offences relating to hatches
The master of a pleasure vessel or a prescribed vessel that departs from or arrives at any port in the State with the hatches of the vessel not properly battened down and secured, or not in a position and condition that they can be battened down and secured without delay, is guilty of an offence.
Penalty: a fine of $2 000.
[Section 69 inserted: No. 24 of 2023 s. 52.]
70.Offence of being on board vessel unlawfully
(1)A person (other than an inspector or authorised person) must not, without reasonable excuse or the permission of the master of a vessel, board or remain alongside the vessel in any port during the night.
Penalty for this subsection: a fine of $500.
(2)The master or a police officer may apprehend and detain any person found to be offending against subsection (1) and a person so detained must be brought before a court as soon as practicable.
[Section 70 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 53.]
71.Removal of vessels constituting hazards or obstructions
(1)Whenever a vessel which is in navigable waters and, in the opinion of an inspector, constitutes or is likely to constitute a hazard or obstruction to other vessels using those waters, whether as a result of being abandoned, derelict, stranded, sunk, unfit for sea service, wrecked or otherwise, the chief executive officer may, by notice in writing served on the owner of that vessel or, if the identity or whereabouts, or both, of the owner of that vessel cannot he ascertained after the making of reasonable inquiries, published once in a newspaper circulating through out the State, declare that vessel to be a navigational hazard and require that vessel to be removed within such period, being not less than 7 days after the date of service or publication of that notice, as is specified in that notice from all navigable waters or to a place specified in that notice.
(2)If a requirement under subsection (1) is not complied with, the chief executive officer may remove or cause to be removed the navigational hazard from all navigable waters or to the place specified in the notice referred to in that subsection, as the case may be.
(3)The cost of removal under subsection (2) is a debt due to the Crown and a first charge in priority to all other claims on the navigational hazard.
(4A)In accordance with the Personal Property Securities Act 2009 (Commonwealth) section 73(2)(a), it is declared that section 73(2) of that Act applies to a charge created under subsection (3).
(4B)The chief executive officer may recover the cost of removal under subsection (2) by —
(a)action in a court of competent jurisdiction against the owner of the navigational hazard; or
(b)selling or causing to be sold the navigational hazard.
(4C)If under subsection (4B)(b) any navigational hazard is sold in good faith to a person and the person takes the property in good faith, the person receives good title to the navigational hazard against every other person including its true owner.
(4)The proceeds of a sale referred to in subsection (4B)(b) shall be applied —
(a)first in payment of the costs of that sale; and
(b)secondly in payment of the costs of removing the navigational hazard,
and the balance, if any, of those proceeds shall he paid to the owner of the navigational hazard or, if the identity or whereabouts, or both, of that owner cannot be ascertained after making reasonable inquiries, credited to the Consolidated Account.
(5)In this section, waters means waters within —
(a)the territorial sea adjacent to the State; and
(b)the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State; and
(c)waters within the limits of the State.
[Section 71 amended: No. 35 of 1990 s. 21; No. 6 of 1993 s. 11; No. 49 of 1996 s. 64; No. 77 of 2006 s. 4; No. 42 of 2011 s. 112.]
72.Offences in relation to disorderly persons on passenger ships
(1)A person who —
(a)being drunk or disorderly, has been on that account refused admission into a passenger ship by the owner or any person in his employ, and, after having had the amount of his fare (if he has paid a fare) returned or tendered to him, nevertheless persists in attempting to enter the ship; or
(b)being drunk or disorderly on board such ship, is requested by the owner or any person in his employ to leave her at any place which she visits in the State, and, having had the amount of his fare (if he has paid a fare) returned or tendered to him, refuses to comply with the request; or
(c)being on board any such ship, after warning by the master or any other officer of the ship, molests or continues to molest any passenger; or
(d)having boarded such ship without permission of the master or other officer in authority, refuses to leave the ship after being requested to do so by the master or officer; or
(e)after having been refused admission into any such ship by the owner or any person in his employ on account of the ship being full, and, after having had the amount of his fare (if he has paid a fare) returned or tendered to him, nevertheless persists in attempting to enter the ship; or
(f)having boarded any such ship, upon being requested by the owner or any person in his employ to leave the ship before she has quitted the place at which such person boarded on account of the ship being full, and, upon having the amount of his fare (if he has paid a fare) returned or tendered to him, refuses to comply with the request; or
(g)travels or attempts to travel in any such ship without having previously paid the fare when demanded and with intent to avoid payment of the fare; or
(h)having paid the fare for a certain distance, knowingly and wilfully proceeds in any such ship beyond that distance without previously paying the additional fare for the additional distance when demanded and with intent to avoid payment of the additional fare; or
(i)knowingly and wilfully refuses or neglects, on arriving at the place or point to which he has paid the fare, to quit the ship; or
(j)being on board any such ship does not, when required by the master or other officer of such ship, either pay the fare or exhibit such ticket or other receipt (if any) showing the payment of the fare as is usually given to persons travelling by the ship and paying the fare,
is guilty of an offence.
Penalty: $500.
(2)A penalty under this section shall not prejudice the recovery of any fare payable by the offender.
73.Offences in relation to interference with machinery or obstruction of crew
A person who on board a passenger ship wilfully does or causes to be done anything —
(a)to obstruct or injure any part of the boilers, machinery, or equipment of the ship; or
(b)to obstruct, impede or molest any member of the crew in the navigation or management of the ship or otherwise in the execution of his duty,
is guilty of an offence.
Penalty: $1 000.
74.Penalty for refusing to give name and address etc.
A person reasonably suspected of having committed an offence against section 72 or 73 who, on being asked by the master, neglects or refuses to give his name and residential address or gives a false name or false residential address is guilty of an offence.
Penalty: $500.
75.Arrest of offenders on passenger ships
The master or other officer of a passenger ship, and all persons called by him to his assistance, may detain any person who is reasonably suspected of having committed an offence against section 72, 73, or 74 and whose name and residential address are unknown to the master or officer and may convey the offender as soon as is practicable before a court to be dealt with according to law.
Part 3A — Safe navigation of vessels, and alcohol and drug related offences
[Heading inserted: No. 31 of 2023 s. 14(1).]
[Heading inserted: No. 31 of 2023 s. 14(1).]
In this Part —
0.08+ and illicit drug offence means an offence against section 75DD(1);
0.08+ offence means an offence against section 75DA(1);
circumstances of aggravation has the meaning given in section 75AF;
involved, for a vessel in relation to an incident, has the meaning given in section 75AB;
navigate, a vessel, has the meaning given in section 75AA(2);
operate, a vessel, has the meaning given in section 75AA(1).
[Section 75A inserted: No. 31 of 2023 s. 14(1).]
75AA.When individual operates or navigates vessel
(1)An individual operates a vessel if the individual —
(a)determines or exercises control over the course or direction of the vessel, or the means of propulsion of the vessel, whether or not the vessel is underway or being towed by another vessel; or
(b)pilots the vessel.
(2)An individual navigates a vessel if the individual —
(a)operates the vessel; or
(b)is in command or charge of the vessel while the individual, or another individual or other individuals, operate or attempt to operate the vessel.
[Section 75AA inserted: No. 31 of 2023 s. 14(1).]
75AB.When vessel is involved in incident
A vessel is involved in an incident if —
(a)the presence of the vessel occasioned the incident; or
(b)the use of the vessel is an immediate or proximate cause of the death of, or injury to, a person or damage to property occasioned by the incident.
[Section 75AB inserted: No. 31 of 2023 s. 14(1).]
75AC.Person taken to be in command or charge of vessel for purposes of Parts 3A and 3B
(1)This section applies for the purposes of Parts 3A and 3B and in the absence of proof to the contrary.
(2)A person is taken to be in command or charge of a vessel at a particular time if, at that time
(a)the person is the only person, or the only person who is 18 years of age or above, on the vessel; or
(b)
(c)the other persons on the vessel, or a majority of them, acknowledge that the person is in charge of the vessel; or
(d)
(i)the vessel is underway; or
(ii)
Example for this subsection:
For the purposes of paragraph (b), the person says or does something that makes them appear to be in command or charge of the vessel.
(3)
(b)holds a marine qualification that authorises the person to navigate the vessel.
(4)A person who has command or charge of a vessel continues to have command or charge of the vessel until the person has ensured that —
(a)the command or charge of the vessel has been handed to another person; and
(b)the other person has accepted the command or charge.
[Section 75AC inserted: No. 31 of 2023 s. 14(1).]
75AD.Person is incapable of having proper control of vessel
For the purposes of this Part, a reference to a person being incapable of having proper control of a vessel includes —
(a)a reference to the person being incapable of having proper control over —
(i)the course or direction of the vessel; or
(ii)the means of propulsion of the vessel;
and
(b)a reference to the person who is the pilot of the vessel being incapable of having proper conduct of the vessel; and
(c)a reference to the person who is the master of a vessel being incapable of having proper command or charge of the vessel.
[Section 75AD inserted: No. 31 of 2023 s. 14(1).]
75AE.Person with BAC of 0.15 or above taken to be incapable of proper control
(1)This section applies in a proceeding for an offence if it is alleged that, at the time of the alleged offence, the person charged was under the influence of alcohol to such an extent as to be incapable of having proper control of a vessel.
(2)The person is taken to have been under the influence of alcohol to that extent at the time of the alleged offence if the person had a BAC of 0.15 g or above at that time.
[Section 75AE inserted: No. 31 of 2023 s. 14(1).]
75AF.Circumstances of aggravation
(1)For the purposes of this Part, a person commits an offence, or navigates a vessel, in circumstances of aggravation if at the time of the alleged offence or navigation —
(a)the person was unlawfully navigating the vessel without the consent of an owner or the master of the vessel; or
(b)if a speed limit applied to the vessel or the waters in which it was operating — the person was navigating the vessel at a speed that exceeded the speed limit by 10 knots or more; or
(c)the person was navigating the vessel to escape pursuit by an inspector or police officer.
(2)Subsection (1)(c) applies whether the pursuit was proceeding, or had been suspended or terminated, at the time of the alleged offence.
[Section 75AF inserted: No. 31 of 2023 s. 14(1).]
Division 2 — Safe navigation of vessels and alcohol and drug related offences
[Heading inserted: No. 31 of 2023 s. 14(1).]
Subdivision 1 — Dangerous navigation of vessels occasioning death, grievous bodily harm or bodily harm
[Heading inserted: No. 31 of 2023 s. 14(1).]
75B.Dangerous navigation of vessel occasioning death
(1)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning the death of another person; and
(b)at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel.
Alternative offence for this subsection: subsection (2) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BA(1) or (2) |
Dangerous navigation of vessel occasioning grievous bodily harm |
|
s. 75BB(1) or (3) |
Dangerous navigation of vessel occasioning bodily harm |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection: imprisonment for 20 years and a fine of any amount.
(2)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning the death of another person; and
(b)at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case.
Alternative offence for this subsection: subsection (1) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BA(1) or (2) |
Dangerous navigation of vessel occasioning grievous bodily harm |
|
s. 75BB(1) or (3) |
Dangerous navigation of vessel occasioning bodily harm |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection:
(a)if the offence is committed in circumstances of aggravation — imprisonment for 20 years and a fine of any amount;
(b)otherwise — imprisonment for 10 years and a fine of any amount.
(3)A court sentencing a person for an offence against subsection (1) or (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 2 years.
[Section 75B inserted: No. 31 of 2023 s. 14(1).]
75BA.Dangerous navigation of vessel occasioning grievous bodily harm
(1)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning grievous bodily harm to another person; and
(b)at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel.
Alternative offence for this subsection: subsection (2) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BB(1) or (3) |
Dangerous navigation of vessel occasioning bodily harm |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection: imprisonment for 14 years and a fine of any amount.
Summary conviction penalty for this subsection: imprisonment for 3 years or a fine of $36 000.
(2)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning grievous bodily harm to another person; and
(b)at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case.
Alternative offence for this subsection: subsection (1) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BB(1) or (3) |
Dangerous navigation of vessel occasioning bodily harm |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection:
(a)if the offence is committed in circumstances of aggravation — imprisonment for 14 years and a fine of any amount;
(b)otherwise — imprisonment for 7 years or a fine of any amount.
Summary conviction penalty for this subsection: imprisonment for 3 years or a fine of $36 000.
(3)A court sentencing a person for an offence against subsection (1) or (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 2 years.
[Section 75BA inserted: No. 31 of 2023 s. 14(1).]
75BB.Dangerous navigation of vessel occasioning bodily harm
(1)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning bodily harm to another person; and
(b)at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel.
Alternative offence for this subsection: subsection (3) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection: imprisonment for 10 years and a fine of any amount.
Summary conviction penalty for this subsection: imprisonment for 3 years or a fine of $36 000.
(2)A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows —
(a)if the person is convicted on indictment — for a period of not less than 2 years;
(b)if the person is convicted summarily — for a period of not less than 18 months.
(3)A person commits a crime if —
(a)a vessel navigated by the person is involved in an incident occasioning bodily harm to another person; and
(b)at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case.
Alternative offence for this subsection: subsection (1) or an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection:
(a)if the offence is committed in circumstances of aggravation —
(i)if the person is convicted on indictment — imprisonment for 10 years or a fine of any amount;
(ii)if the person is convicted summarily — imprisonment for 3 years or a fine of $36 000;
(b)otherwise —
(i)for a first offence, imprisonment for 9 months or a fine of $9 000;
(ii)for a second or subsequent offence, imprisonment for 18 months or a fine of $18 000.
(4)A court sentencing a person for an offence against subsection (3) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows —
(a)if the offence is committed in circumstances of aggravation — a period of not less than 2 years;
(b)otherwise — a period of not less than 12 months.
[Section 75BB inserted: No. 31 of 2023 s. 14(1).]
75BC.Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm
(1)A person commits an offence if —
(a)a vessel navigated by the person is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, another person; and
(b)at the time of the incident, the person was navigating the vessel without due care and attention.
Alternative offence for this subsection: section 75BF (Careless navigation of vessel).
Penalty for this subsection: imprisonment for 3 years or a fine of $36 000.
(2)A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 3 months.
[Section 75BC inserted: No. 31 of 2023 s. 14(1).]
Subdivision 2 — Reckless, dangerous and careless navigation of vessels
[Heading inserted: No. 31 of 2023 s. 14(1).]
75BD.Reckless navigation of vessel
(1)A person commits an offence if the person wilfully navigates a vessel in a manner that is —
(a)inherently dangerous; or
(b)dangerous to the public or to any person, having regard to all the circumstances of the case.
Penalty for this subsection:
(a)for a first offence, a fine of $6 000;
(b)for a second offence, a fine of $9 000;
(c)for a third or subsequent offence, a fine of $12 000.
Alternative offence for this subsection: an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
(2)If an offence against subsection (1) is committed in the circumstance of aggravation referred to in section 75AF(1)(c), the offence is a crime.
Alternative offence for this subsection: an offence specified in the Table.
Table — Alternative offence
|
Section no. |
Section heading |
|
s. 75BE(1) |
Dangerous navigation of vessel |
|
s. 75BF |
Careless navigation of vessel |
Penalty for this subsection: imprisonment for 5 years.
Summary conviction penalty for this subsection: imprisonment for 2 years.
(3)A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows —
(a)for an offence committed in a circumstance of aggravation —
(i)for a first or second offence, for a period of not less than 2 years; or
(ii)for a third or subsequent offence, permanently;
(b)otherwise —
(i)for a first offence, for a period of not less than 6 months; or
(ii)for a second offence, for a period of not less than 12 months; or
(iii)for a third or subsequent offence, permanently.
(4)A police officer may arrest a person for an offence against subsection (1) without a warrant.
[Section 75BD inserted: No. 31 of 2023 s. 14(1).]
75BE.Dangerous navigation of vessel
(1)A person commits an offence if the person navigates a vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case.
Alternative offence for this subsection: section 75BF (Careless navigation of vessel).
Penalty for this subsection:
(a)for an offence committed in the circumstance of aggravation referred to in section 75AF(1)(c) — imprisonment for 3 years or a fine of $36 000;
(b)otherwise —
(i)for a first offence, a fine of $3 000;
(ii)for a second or subsequent offence, a fine of $6 000.
(2)A court sentencing a person for an offence against subsection (1) must order that the offender is disqualified from holding or obtaining a WA marine qualification as follows —
(a)for an offence committed in the circumstance of aggravation referred to in section 75AF(1)(c) — for a period of not less than 2 years;
(b)if paragraph (a) does not apply and the offence is a second or subsequent offence — for a period of not less than 12 months.
(3)In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were a previous offence against subsection (1).
Table — Offences
|
Section no. |
Section heading |
|
s. 75B(1) or (2) |
Dangerous navigation of vessel occasioning death |
|
s. 75BA(1) or (2) |
Dangerous navigation of vessel occasioning grievous bodily harm |
|
s. 75BB(1) or (3) |
Dangerous navigation of vessel occasioning bodily harm |
|
s. 75BC(1) |
Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm |
[Section 75BE inserted: No. 31 of 2023 s. 14(1).]
75BF.Careless navigation of vessel
A person commits an offence if the person navigates a vessel without due care and attention.
Penalty: a fine of $1 500.
[Section 75BF inserted: No. 31 of 2023 s. 14(1).]
Subdivision 3 — Provisions relating to offences in Subdivisions 1 and 2
[Heading inserted: No. 31 of 2023 s. 14(1).]
75BG.Application of Subdivision
This Subdivision applies for the purposes of an offence against a provision of Subdivision 1 or 2.
[Section 75BG inserted: No. 31 of 2023 s. 14(1).]
75BH.Circumstances occasioning death, grievous bodily harm or bodily harm
The circumstances in which a vessel is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include circumstances in which the death or harm is occasioned through any of the following —
(a)the vessel overturning or running aground while the person is in or on the vessel (whether as a passenger or otherwise);
(b)the person falling from the vessel, or being thrown or ejected from the vessel, while in or on the vessel (whether as a passenger or otherwise);
(c)an impact between any object or thing and the vessel while the person is in or on the vessel (whether as a passenger or otherwise);
(d)an impact between the person and the vessel;
(e)an impact between the vessel and another vessel, or an object or thing, while the person is on or near the other vessel, object or thing;
(f)an impact between the person and any object on or attached to the vessel;
(g)an impact between the person and any object that is in motion having fallen from the vessel;
(h)an impact between any object or thing and the person while the person is in or on the vessel (whether as a passenger or otherwise);
(i)the vessel causing an impact between other vessels or between another vessel and any object, thing or person;
(j)the vessel causing another vessel to overturn or run aground;
(k)the vessel causing a person (whether as a passenger or otherwise) in or on another vessel to fall from that other vessel.
[Section 75BH inserted: No. 31 of 2023 s. 14(1).]
75BI.Provisions for offences involving incidents occasioning death, grievous bodily harm or bodily harm
(1)This section applies for the purposes of an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person (the casualty).
(2)It is immaterial that the death, grievous bodily harm or bodily harm —
(a)might have been avoided by proper precaution on the part of a person other than the person charged; or
(b)might have been prevented if the casualty received proper care or treatment.
(3)The incident is taken to have caused the death of the casualty if —
(a)the incident occasions grievous bodily harm to the casualty; and
(b)the casualty receives surgical or medical treatment for the harm; and
(c)the death results from the harm or the treatment.
(4)Subsection (3) applies even though the immediate cause of the casualty’s death was the surgical or medical treatment, if the treatment was reasonably proper in the circumstances and provided in good faith.
[Section 75BI inserted: No. 31 of 2023 s. 14(1).]
75BJ.Defence: death or harm not attributable to alcohol or drugs
(1)This section applies if it is alleged that an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person occurred while the person charged was under the influence of alcohol, a drug, or alcohol and a drug.
(2)It is a defence to a charge of the offence for the person charged to prove that the death, grievous bodily harm or bodily harm was not attributable to the fact that the person charged was under the influence of alcohol, the drug, or alcohol and the drug.
[Section 75BJ inserted: No. 31 of 2023 s. 14(1).]
75BK.Defence: death or harm not attributable to manner of operation or level of care and attention
(1)This section applies if it is alleged that an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person occurred while the person charged was navigating the vessel.
(2)It is a defence to a charge of the offence for the person charged to prove that the death, grievous bodily harm or bodily harm was not attributable to —
(a)the manner in which the person navigated the vessel; or
(b)the person’s level of care or attention when navigating the vessel.
[Section 75BK inserted: No. 31 of 2023 s. 14(1).]
75BL.Defence: inspector or police officer navigating vessel in certain circumstances
(1)This section applies if it is alleged that the person charged with an offence navigated a vessel in a manner that was —
(a)inherently dangerous; or
(b)dangerous to the public or to any person.
(2)It is a defence to a charge of the offence for the person charged to prove that, at the time of the alleged offence —
(a)the person was on official duty as an inspector or police officer; and
(b)the person navigated the vessel substantially in accordance with —
(i)the chief executive officer’s or Commissioner of Police’s policies and guidelines relating to navigating vessels; and
(ii)a direction given under any of those policies or guidelines;
and
(c)it was reasonable and in the public interest for the person charged to navigate the vessel in that manner, having regard to all of the circumstances of the case.
[Section 75BL inserted: No. 31 of 2023 s. 14(1).]
Division 3 — Navigation of vessels while under the influence of alcohol or drugs or impaired by drugs
[Heading inserted: No. 31 of 2023 s. 14(1).]
75C.Navigation of vessel while under influence of alcohol or drugs
(1)A person commits an offence if the person navigates, or attempts to operate, a vessel while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vessel.
Alternative offence for this subsection: an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75CD(1) |
Navigation of vessel while impaired by drugs |
|
s. 75D(1) |
Navigation of vessel while BAC is 0.05 or above |
|
s. 75DA(1) |
Navigation of vessel while BAC is 0.08 or above |
|
s. 75DB(1) |
Navigation of vessel while prescribed illicit drug present |
Penalty for this subsection:
(a)for a first offence —
(i)if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $3 750;
(ii)if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $2 750 or more than $3 750;
(iii)if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $2 750 or more than $3 750;
(iv)in any other case — a fine of not less than $2 050 or more than $3 750;
(b)for a second offence, imprisonment for 9 months or a fine of not less than $3 150 or more than $5 250;
(c)for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $3 150 or more than $7 500.
(2)If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table.
Table — Disqualification periods
|
|
Disqualification |
|
First offence: (a)1 previous conviction for a 0.08+ offence |
18 months |
|
(b)2 or more previous convictions for a 0.08+ offence |
30 months |
|
(c)1 previous conviction for a 0.08+ and illicit drug offence |
27 months |
|
(d)2 or more previous convictions for a 0.08+ and illicit drug offence |
42 months |
|
(e)1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence |
42 months |
|
(f)any other case |
10 months |
|
Second offence |
30 months |
|
Subsequent offence |
Permanent |
(3)In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1).
Table — Offences
|
Section no. |
Section heading |
|
s. 75CA(1) |
Navigation of vessel while under influence of both alcohol and drugs |
|
s. 75CD(1) |
Navigation of vessel while impaired by drugs |
|
s. 75HB(1) |
Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place |
|
s. 75HC(1) |
Failure to comply with requirement: incident occasioning death, grievous bodily harm or bodily harm |
|
s. 75HE(1) |
Failure to comply with requirements relating to assessment of drug impairment |
|
s. 75HI(1) |
Failure to comply with drug testing requirement: BAC of 0.15 or above |
(4)A police officer may arrest a person for an offence against subsection (1) without a warrant.
(5)The charging of a person for an offence against this section does not limit the operation of sections 75EE, 75EF, 75EH, 75EN and 75EO.
[Section 75C inserted: No. 31 of 2023 s. 14(1).]
75CA.Navigation of vessel while under influence of both alcohol and drugs
(1)A person commits an offence if the person navigates, or attempts to operate, a vessel while under the influence of alcohol and a drug to such an extent as to be incapable of having proper control of the vessel.
Alternative offence for this subsection: an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75C(1) |
Navigation of vessel while under influence of alcohol or drugs |
|
s. 75CD(1) |
Navigation of vessel while impaired by drugs |
|
s. 75D(1) |
Navigation of vessel while BAC is 0.05 or above |
|
s. 75DA(1) |
Navigation of vessel while BAC is 0.08 or above |
|
s. 75DB(1) |
Navigation of vessel while prescribed illicit drug present |
|
s. 75DC(1) |
Navigation of vessel while BAC is 0.05 or above and prescribed illicit drug present |
|
s. 75DD(1) |
Navigation of vessel while BAC is 0.08 or above and prescribed illicit drug present |
Penalty for this subsection:
(a)for a first offence —
(i)if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $5 650;
(ii)if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650;
(iii)if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650;
(iv)in any other case — a fine of not less than $2 050 or more than $5 650;
(b)for a second offence, imprisonment for 9 months or a fine of not less than $4 750 or more than $7 900;
(c)for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $4 750 or more than $11 250.
(2)If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table.
Table — Disqualification periods
|
|
Disqualification |
|
First offence: (a)1 previous conviction for a 0.08+ offence |
18 months |
|
(b)2 or more previous convictions for a 0.08+ offence |
30 months |
|
(c)1 previous conviction for a 0.08+ and illicit drug offence |
27 months |
|
(d)2 or more previous convictions for a 0.08+ and illicit drug offence |
42 months |
|
(e)1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence |
42 months |
|
(f)any other case |
15 months |
|
Second offence |
42 months |
|
Subsequent offence |
Permanent |
(3)In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1).
Table — Offences
|
Section no. |
Section heading |
|
s. 75CD(1) |
Navigation of vessel while impaired by drugs |
|
s. 75HB(1) |
Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place |
|
s. 75HC(1) |
Failure to comply with requirement: incident occasioning death, grievous bodily harm or bodily harm |
|
s. 75HE(1) |
Failure to comply with requirements relating to assessment of drug impairment |
|
s. 75HI(1) |
Failure to comply with drug testing requirement: BAC of 0.15 or above |
(4)A police officer may arrest a person for an offence against subsection (1) without a warrant.
(5)The charging of a person for an offence against this section does not limit the operation of sections 75EE, 75EF, 75EH, 75EN and 75EO.
[Section 75CA inserted: No. 31 of 2023 s. 14(1).]
75CB.Defence: under influence of drug prescribed or administered for therapeutic reasons
(1)This section applies in relation to an offence against section 75C(1) or 75CA(1) if it is alleged, or it appears on the evidence, that the person charged was under the influence of a particular drug.
(2)It is a defence to a charge of the offence for the person charged to prove that —
(a)the particular drug was prescribed for, or administered to, the person by a medical practitioner, nurse practitioner or dentist for therapeutic reasons; and
(b)the person was not aware, and could not reasonably have been expected to be aware, that the particular drug was likely to affect the person in a way that would be inconsistent with the person being capable of having proper control of a vessel.
[Section 75CB inserted: No. 31 of 2023 s. 14(1).]
75CC.Master must not permit person under influence of alcohol or drugs or both to operate vessel
The master of a vessel commits an offence if the master —
(a)is aware or has reason to suspect that another person is under the influence of alcohol, a drug or alcohol and a drug; and
(b)permits the other person to operate the vessel.
Penalty: a fine of $3 750.
[Section 75CC inserted: No. 31 of 2023 s. 14(1).]
75CD.Navigation of vessel while impaired by drugs
(1)A person commits an offence if the person navigates, or attempts to operate, a vessel while the person is impaired by a drug.
Alternative offence for this subsection: an offence specified in the Table.
Table — Alternative offences
|
Section no. |
Section heading |
|
s. 75C(1) |
Navigation of vessel while under influence of alcohol or drugs |
|
s. 75CA(1) |
Navigation of vessel while under influence of both alcohol and drugs |
|
s. 75DB(1) |
Navigation of vessel while prescribed illicit drug present |
Penalty for this subsection:
(a)for a first offence, a fine of not less than $1 700 or more than $3 750;
(b)for a second offence, imprisonment for 9 months or a fine of not less than $3 150 or more than $5 250;
(c)for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $3 150 or more than $7 500.
(2)A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows —
(a)for a first offence, for a period of not less than 10 months;
(b)for a second offence, for a period of not less than 30 months;
(c)for a third or subsequent offence, permanently.
(3)In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1).
Table — Offences
|
Section no. |
Section heading |
|
s. 75C(1) |
Navigation of vessel while under influence of alcohol or drugs |
|
s. 75CA(1) |
Navigation of vessel while under influence of both alcohol and drugs |
|
s. 75HB(1) |
Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place |
|
s. 75HC(1) |
Failure to comply with requirement: incident occasioning death, greivous bodily harm or bodily harm |
|
s. 75HE(1) |
Failure to comply with requirements relating to assessment of drug impairment |
|
s. 75HI(1) |
Failure to comply with drug testing requirement: BAC of 0.15 or above |
(4)A police officer may arrest a person for an offence against subsection (1) without a warrant.
[Section 75CD inserted: No. 31 of 2023 s. 14(1).]
75CE.When person may be convicted of navigation of vessel while impaired by drugs offence
A person may be convicted of an offence against section 75CD(1) if the prosecutor proves that —
(a)the person navigated, or attempted to operate, a vessel; and
(b)at the time of the navigation or attempted operation of the vessel, 1 or more drugs were present in the person’s body; and
(c)the person’s behaviour, condition or appearance was consistent with the behaviour, condition or appearance associated with a person who has consumed or used that drug or combination of drugs; and
(d)the behaviour or condition associated with a person who has consumed or used that drug or combination of drugs would be inconsistent with the person being capable of having proper control of a vessel.
[Section 75CE inserted: No. 31 of 2023 s. 14(1).]
75CF.Defence: impaired by drug prescribed or administered for therapeutic reasons
(1)This section applies in relation to an offence against section 75CD(1) if it is alleged, or it appears on the evidence, that the person charged was impaired by 1 or more drugs.
(2)It is a defence to a charge of the offence for the person charged to prove that —
(a)the drug, or each drug, was prescribed for, or administered to, the person charged by a medical practitioner, nurse practitioner or dentist for therapeutic reasons; and
(b)if the person charged received the drug, or 1 of the drugs, in packaged form — the packaging did not include a label advising that the drug was likely to affect a person in a way that would be inconsistent with the person being capable of having proper control of a vessel; and
(c)the person charged was not aware, and could not reasonably have been expected to be aware, that the drug or combination of drugs were likely to affect the person in a way that would be inconsistent with the person being capable of having proper control of a vessel.
(3)This section has effect despite section 75CE.
[Section 75CF inserted: No. 31 of 2023 s. 14(1).]
75CG.Rights of person charged with particular offences
(1)This section applies if —
(a)a person is charged with an offence against section 75C(1), 75CA(1) or 75CD(1); and
(b)a sample of the person’s blood was not taken under an alcohol or drug testing requirement before the person was charged.
(2)The person has the right to be examined by a medical practitioner nominated by them, if one is available, for the purpose of arranging for a sample of the person’s blood to be taken.
(3)An inspector or police officer must —
(a)inform the person charged of this right; and
(b)make every reasonable effort to afford the person charged this right.
[Section 75CG inserted: No. 31 of 2023 s. 14(1).]
Part 4 — International Conventions
[Heading amended: No. 24 of 2023 s. 55.]
In this Part, unless the contrary intention appears —
applied provisions of the Limitation Convention means the provisions of the Limitation Convention that, as provided by section 84, have the force of law as part of the law of the State;
container has the same meaning as in the Container Convention;
Container Convention means the International Convention for Safe Containers as corrected by the Proces‑Verbal of Rectification dated 25 June 1976 (a copy of the English text of the articles of which, and of the annexes to which, as so corrected, is set forth in Schedule 1) as affected by —
(a)any amendment of the Convention, other than an amendment not accepted by Australia, made under Article IX of the Convention; and
(b)any amendment of the annexes to the Convention, other than an amendment objected to by Australia, made under Article X of the Convention;
Limitation Convention means the International Convention relating to the limitation of the liability of owners of sea‑going ships signed at Brussels on 10 October 1957, (a copy of the English text of which is set forth in Schedule 2);
Prevention of Collisions Convention means the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (a copy of the English text of the articles of which is set forth in Schedule 3), together with the International Regulations for Preventing Collisions at Sea, 1972, constituted by the rules, and other annexes attached to that Convention, as corrected by the Proces‑Verbal of Rectification dated 1 December 1973 (a copy of the English text of which rules and other annexes, as so corrected, is also set forth in Schedule 3), as affected by any amendment, other than an amendment objected to by Australia, made under Article VI of that Convention;
Protocol of 1978 relating to the Safety Convention means the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974 (a copy of the English text of the articles of which, and of part of the annex to which, is set forth in Schedule 5), as affected by any amendment, other than an amendment objected to by Australia, made under Article VIII of the International Convention for the Safety of Life at Sea, 1974, as incorporated in that Protocol by Article II of that Protocol;
Safety Convention means the International Convention for the Safety of Life at Sea, 1974 (a copy of the English text of the articles of which, and of part of the annex to which, is set forth in Schedule 4), as affected by any amendment, other than an amendment objected to by Australia, made under Article VIII of that Convention and, after the date on which the Protocol of 1978 relating to the Safety Convention enters into force for Australia, as also affected by that Protocol;
sea includes any waters within the ebb and flow of the tide; and
sheltered water passenger vessel means a passenger vessel permitted to operate in partially smooth and smooth waters only.
77.Regulations under this Part
(1)The Governor may make regulations for or with respect to any matter authorised or required to be prescribed by the regulations for the purposes of this Part and, in particular, except as otherwise provided in this Part, for or with respect to prescribing penalties not exceeding a fine of $1 000 for a contravention of, or failure to comply with, a provision of the regulations or a notice, order, direction or instruction given, issued or made under, or in force by virtue of, the regulations.
(2)Regulations made under this Part may make provision for or with respect to any matter by applying, adopting or incorporating, with or without modification —
(a)the provisions of any Act, or of any regulations, as in force at a particular time or as in force from time to time; or
(b)any matter contained in any other instrument or writing as in force or existing at the time when the first‑mentioned regulations take effect,
but the regulations shall not, except as provided by this subsection, make provision for or with respect to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
[Section 77 amended: No. 78 of 1995 s. 147.]
78.Regulations giving effect to Conventions: discretion of Governor and Minister
(1)Where, under this Part, the Governor is empowered to make regulations for and in relation to giving effect to any of the provisions of the Container Convention, the Safety Convention or the Prevention of Collisions Convention, the power shall, in the case of a provision of any of those Conventions the terms of which are such as to vest in the several Governments who are parties to the Convention a discretion as to whether any, and if so what, action should be taken under the Convention, be construed as an authority to the Governor to make by regulation such provision (if any) with respect to the matter in question as the Governor in the exercise of that discretion thinks proper.
(2)Notwithstanding any regulation made under any provision of this Part for the purpose of giving effect to any provision of the Container Convention, the Safety Convention or the Prevention of Collisions Convention which requires a particular fitting, material, appliance or apparatus, or type thereof, to be fitted or carried in a ship, or any particular provision to be made in a ship, the Minister may allow any other fitting, material, appliance or apparatus, or type thereof, to be fitted or carried, or any other provision to be made if the Minister is satisfied that that other fitting, material, appliance or apparatus, or type thereof, of provision, is at least as effective as that required by the relevant Convention.
[Section 78 amended: No. 24 of 2023 s. 57.]
Division 2 — Prevention of Collisions Convention
79.Regulations giving effect to Prevention of Collisions Convention
(1)The regulations may make provision for and in relation to giving effect to the Prevention of Collisions Convention in relation to vessels, while they are in State waters.
(2)A person shall not contravene a regulation made under subsection (1).
Penalty for this subsection: a fine of
[(3)deleted]
[Section 79 amended: No. 24 of 2023 s. 58.]
Division 3 — Container Convention
80.Regulations giving effect to Container Convention
(1)The regulations may make provision for and in relation to giving effect to the Container Convention in relation to containers in the State.
(2)Without limiting the generality of subsection (1), regulations made for the purpose of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.
81.Safety requirements and tests not required or permitted by the Container Convention not to be imposed
(1)Nothing in a law in force in the State at the commencement of this Division shall, after that commencement, be taken as imposing or authorising the imposition of structural safety requirements or tests on containers to which the Container Convention applies in relation to containers in the State that are not required or permitted by that Convention to be imposed on containers to which it applies.
(2)Nothing in subsection (1) shall be taken to preclude the application in relation to containers in the State to which the Container Convention applies of a law in force in the State that prescribes additional structural safety requirements or tests of a kind referred to in paragraph (2) of Article V of that Convention.
Division 4 — Limitation Convention and limitation provisions
In this Division, except in so far as the contrary intention appears, a word or expression used in this Division has the same meaning as in the Limitation Convention.
(1)The provisions of this Division shall be read subject to any law in force in the State to the extent that, by giving effect to an international agreement to which Australia is a party, it excludes or limits the right of the owner of a sea‑going ship to limit his liability in accordance with the Limitation Convention.
(2)A reference in subsection (1) to the provisions of this Division shall be read as including a reference to the applied provisions of the Limitation Convention and the provisions of any regulations made for the purposes of section 87.
84.Provisions of Limitation Convention having force of law
(1)Subject to section 85, the provisions of the Limitation Convention, other than Article 1(1)(c) of that Convention, have the force of law of as part of the law of the State in relation to —
(a)a trading ship within the meaning of section 6 of the former Navigation Act proceeding on a voyage other than an overseas voyage or an inter‑state voyage; and
(b)an Australian fishing vessel within the meaning of section 6 of that Act proceeding on a voyage other than an overseas voyage; and
(c)an inland waterways vessel within the meaning of section 6 of that Act; and
(d)a pleasure craft within the meaning of section 6 of that Act; and
(e)an off‑shore industry vessel within the meaning of section 8 of that Act —
(i)in respect of which there is not in force a declaration under section 8A(2) of that Act; and
(ii)that is proceeding on a voyage other than an overseas voyage or an inter‑state voyage.
(2)In subsection (1), inter‑state voyage and overseas voyage have the same meanings as in section 6 of the former Navigation Act.
(3)A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage.
[Section 84 amended: No. 24 of 2023 s. 59.]
85.Limitation in relation to non‑seagoing ferries
Notwithstanding section 84, in relation to a trading ship or an inland waterways vessel which in either case is a sheltered water passenger vessel, the Limitation Convention shall be read and construed as if the following paragraphs were substituted for Article 3 —
(1)The amount to which the owner of a sheltered water passenger vessel may limit his liability under Article 1 shall be an aggregate amount of $45 000 for each passenger permitted by the vessel’s certificate of survey.
(2)The distribution of the limitation fund among the claimants shall be made in proportion to the amounts of their established claims.
(3)If before the fund is distributed the owner has paid in whole or in part any of the claims set out in Article 1 paragraph (1), he shall pro tanto be placed in the same position in relation to the fund as the claimant whose claim he has paid.
(4)Where the ship owner establishes that he may at a later date be compelled to pay in whole or in part any of the claims set out in Article 1 paragraph (1) the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable the ship owner at such later date to enforce his claim against the fund in the manner set out in the preceding paragraph.
86.Application to determine liability
(1)Where a claim is, or claims are, made against or apprehended by a person in respect of any liability of that person that he may limit in accordance with the applied provisions of the Limitation Convention, the person may apply to the Supreme Court (whether or not in the course of other proceedings) to determine the limit of that liability in accordance with those provisions, and the Court may so determine the limit of that liability and may make such order or orders as it thinks fit with respect to the Constitution, administration and distribution in accordance with those provisions, of a limitation fund for the payment of claims in respect of which the person is so entitled to limit his liability.
(2)The Supreme Court to which an application has been made under subsection (1) may, if the Court thinks fit, at any stage in the proceedings, upon application or of its own motion, by order, transfer the proceedings to the Supreme Court of another State or Territory of the Commonwealth.
(3)Where proceedings are transferred from the Supreme Court in pursuance of subsection (2), all documents filed of record, and moneys lodged, in the Supreme Court shall be transmitted by the Master to the Registrar or other proper officer of the Court to which the proceedings are transferred.
(4)Where proceedings are transferred to the Supreme Court by a Court of another State or Territory of the Commonwealth in pursuance of a law of that State or Territory analogous to this section, the Supreme Court shall proceed as if the proceedings had been originally instituted in the Supreme Court and as if the same proceedings had been taken in that Court as had been taken in the Court from which the proceedings are transferred.
(5)For the purposes of this Division, amounts of money expressed in the franc mentioned in Article 3 of the Convention shall be converted into Australian currency in the manner provided by the Navigation (Limitation of Shipowners’ Liability) Regulations of the Commonwealth or by regulations substituted for or amending those regulations.
87.Regulations giving effect to Limitation Convention
(1)The regulations may prescribe matters that are necessary or convenient to be prescribed for the purposes of carrying out or giving effect to the applied provisions of the Limitation Convention and, for or in connection with those purposes, may make provision for and in relation to the ascertainment of the tonnage of ships, vessels or craft mentioned in section 84(1) including the estimation of such tonnage in circumstances where it is not possible or reasonably practicable to measure their tonnage.
(2)Subsection (1) shall not be taken as limiting the power of the Judges of the Supreme Court to make rules with respect to a matter that is not provided for in regulations made under subsection (1).
88.Ship owner not to be liable in certain cases of loss of, or damage to, goods
The owner of a ship, vessel or craft mentioned in section 84(1) shall not be liable to make good to any extent whatever any loss or damage happening without his actual fault or privity where —
(a)any goods, merchandise or other things whatsoever taken in or put on board the ship are lost or damaged by reason of fire on board the ship; or
(b)any goods, being gold, silver, diamonds watches, jewels or precious stones taken in or put on board the ship, the true nature and value of which have not, at the time of shipment, been declared by the owner or shipper thereof to the owner or master of the ship in the bills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with or secreting thereof.
89.Ship owner not entitled to limit liability in respect of claims by crew etc.
(1)The owner of a ship is not entitled to limit his liability in respect of a claim that is made by the master or any other member of the crew of the ship, or by a servant of the owner on board the ship, or by a servant of the owner whose duties are connected with the ship, where the claim arises from an occurrence of a kind specified in subparagraph (1)(a) or (b) of Article 1 of the Limitation Convention.
(2)The reference in subsection (1) to the master or any other member of the crew of a ship, or a servant of the owner of a ship on board the ship, or a servant of the owner of a ship whose duties are connected with the ship, shall be read as including a reference to the heirs, personal representatives and dependants of the master or other member of the crew, or servant of the owner, as the case may be.
Division 5 — Safety Convention
90.Regulations giving effect to Safety Convention
(1)The regulations may make provision for or in relation to giving effect to a provision of Chapter V of the Regulations contained in the Annex to the Safety Convention (other than Regulation 13 or 15 of that Chapter of those Regulations) with respect to —
(a)a trading ship within the meaning of section 6 of the former Navigation Act proceeding on a voyage other than an overseas voyage or an inter‑state voyage; or
(b)an Australian fishing vessel within the meaning of section 6 of that Act proceeding on a voyage other than an overseas voyage; or
(c)an inland waterways vessel within the meaning of section 6 of that Act; or
(d)a pleasure craft within the meaning of section 6 of that Act; or
(e)an off‑shore industry vessel within the meaning of section 8 of that Act —
(i)in respect of which there is not in force a declaration under section 8A(2) of that Act; and
(ii)that is proceeding on a voyage other than an overseas voyage or an inter‑state voyage.
(2)In subsection (1), inter‑state voyage and overseas voyage have the same meanings as in section 6 of the former Navigation Act.
(3)A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purposes of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage.
(4)Where a provision of the Safety Convention applies only in relation to a particular class of ships or in relation to ships engaged on a particular class of voyages, any regulation under subsection (1) that gives effect to that provision may be applied to ships of any other class mentioned in that subsection or to such ships engaged in any other class of voyages other than an overseas voyage or, except in the case of an Australian fishing vessel, an inter‑state voyage.
[Section 90 amended: No. 24 of 2023 s. 60.]
Part 5 — Carriage of dangerous goods
[Heading amended: No. 24 of 2023 s. 61.]
(1)A person shall not carry dangerous goods in a vessel or place dangerous goods, or cause dangerous goods to be placed, on board a vessel for carriage in the vessel unless —
(a)the outside of the package containing the goods is distinctly marked with a description of the goods in the manner required under the Dangerous Goods Safety Act 2004; and
(b)a description in writing of the goods (not being a description contained in the ordinary shipping documents) is given to the owner and master of the vessel at or before the time the goods are placed on board the vessel.
Penalty for this subsection: a fine of $2 000.
(2)Subsection (1) does not apply to the owner or master of the vessel.
[Section 91 amended: No. 7 of 2004 s. 70; No. 24 of 2023 s. 62.]
92.Penalty for misdescription of goods and sender
(1)A person shall not knowingly send by or carry in any vessel from any port in the State any dangerous goods under a false description.
Penalty for this subsection: a fine of $2 000.
(2)Where any dangerous goods are on board a vessel, or are to be placed on board a vessel, a person shall not knowingly falsely describe the sender of the goods on any package containing the goods or in any document relating to the shipping of the goods.
Penalty for this subsection: a fine of $2 000.
[Section 92: Correction: Gazette 26 Jul 2013 p. 3354; amended: No. 24 of 2023 s. 63.]
93.Powers of owner or master as to dangerous goods
(1)The owner or master of any vessel may refuse to take on board at any port in the State any package which the owner or master suspects contains dangerous goods and may require it to be opened and may inspect the contents.
(2)If any dangerous goods, or any goods which in the opinion of the owner or master of the vessel are dangerous goods, have been sent or brought aboard any vessel without being marked as required by section 91 or without notice having been given as required by that section, the owner or master of the vessel may cause the goods to be thrown overboard, with any package or receptacle in which they are contained, and neither the owner nor the master shall be subject to any liability, civil or criminal, for doing so.
[Section 93 amended: No. 24 of 2023 s. 64.]
94.Forfeiture of dangerous goods
(1)Where any dangerous goods have been sent or carried or an attempt has been made to send or carry dangerous goods on board any vessel at any port in the State without being marked as required by section 91 or without notice having been given as required by that section, or under a false description, or with a false description of the sender or carrier thereof, any court having Admiralty jurisdiction may declare those goods and any receptacle in which they are contained to be, and they shall thereupon be, forfeited, and when forfeited shall be disposed of as the court directs.
(2)The court shall have, and may exercise, the powers of forfeiture and disposal notwithstanding that the owner of the goods has not committed any offence under the provisions of this Act relating to dangerous goods, and is not before the court, and has not notice of the proceedings and notwithstanding that there is no evidence to show to whom the goods belong; but the court may in its discretion require such notice as it may direct to be given to the owner or shipper of the goods before declaring them to be forfeited.
[Section 94 amended: No. 24 of 2023 s. 65.]
95.Minister may prohibit carriage of cargo
If in the opinion of the Minister, the carriage of any particular cargo or goods in any vessel would endanger its safety or interfere with the comfort of its passengers or crew, the Minister may give notice to the master or owner that the carriage in the vessel of the cargo or goods specified in the notice is prohibited and, after receiving such a notice, the master shall not cause the vessel to be underway, and the owner shall not permit the vessel to be underway, with the prohibited cargo or goods.
Penalty: a fine of $2 000.
[Section 95 amended: No. 24 of 2023 s. 66.]
96.Regulations as to dangerous goods
The regulations may deal with the carriage of dangerous goods, including by —
(a)prescribing the classes of vessel in which dangerous goods may be carried; and
(b)providing for the quantities of dangerous goods that may be carried from any port in the State in such vessels; and
(c)providing for the precautions to be observed in connection with the loading and unloading of dangerous goods at any port in the State; and
(d)providing for the conditions as to packing and stowage of dangerous goods, and the ventilation of holds containing dangerous goods, loaded at any port in the State.
[Section 96 inserted: No. 24 of 2023 s. 67.]
97.Explosives on passenger vessels
(1)If a vessel carrying passengers carries explosives, the explosives shall be protected in the manner directed by the chief executive officer.
(2)The master and the owner of a vessel on which explosives are carried contrary to subsection (1) are each guilty of an offence.
Penalty for this subsection: a fine of $2 000.
(3)This section does not apply to explosives forming part of the equipment or stores required for the navigation, safety, or maintenance of the vessel.
(4)Without limiting any power conferred on an inspector or authorised person under this Act, an inspector or authorised person may seize and detain without warrant any explosives which are in or on board a vessel contrary to this section.
(5)Explosives seized under this section may be forfeited on the order of a court of summary jurisdiction and disposed of as the court directs.
[Section 97 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 68.]
(1)In this Part, unless the contrary intention appears —
authorised person means a member of the Police Force, an inspector, or any person authorised for the purpose by the chief executive officer either generally or in a particular case;
owner includes a person who is a joint owner or part owner of a pleasure vessel and, where a pleasure vessel is the subject of a hire‑purchase agreement, means the person who is entitled to the use of the pleasure vessel under the agreement;
pleasure vessel means —
(a)a vessel held wholly for the purpose of recreational or sporting activities and not for hire or reward; and
(b)any other vessel declared to be a vessel to which this Part applies by order of the Minister under subsection (2).
(2)The Minister may by order declare that this Part shall apply to any vessel or any type of vessel specified in that order (not being a vessel required to be licensed otherwise under this Act).
(3)An order under subsection (2) shall be published for general information in the Gazette as soon as practicable after it is made but a failure to so publish shall not affect the validity of the order.
(4)The Minister may by order published in the Gazette vary or revoke an order made under this section.
[Section 98 amended: No. 35 of 1990 s. 21.]
99.Regulations in respect of pleasure vessels
(1)The Governor may make regulations prescribing all matters that are necessary or convenient to be prescribed in respect of the registration, navigation and operation of pleasure vessels and otherwise for giving effect to the purposes of this Part and in particular —
(a)providing for the registration and transfer of registration of pleasure vessels or any class of pleasure vessels, whether generally or where registration is limited in respect of time, place or circumstance, and providing for the suspension or cancellation of such registration; and
(b)prohibiting the navigation of pleasure vessels that cannot safely be navigated; and
(c)regulating the maintenance and repair of pleasure vessels; and
(d)prescribing the equipment to be provided on pleasure vessels and for the use and maintenance of such equipment; and
(e)providing for the inspection of pleasure vessels and their equipment; and
(f)regulating noise, fumes and smoke arising from the operation of pleasure vessels; and
(g)prescribing the age of persons who may be in charge of pleasure vessels, or pleasure vessels of any class; and
(h)providing for the manning of pleasure vessels, generally or in respect of journeys of specified durations; and
(ha)regulating, controlling or prohibiting water related activities generally or any kind of water related activity specified in the regulations; and
(i)regulating or prohibiting the use of specified waters —
(i)by any pleasure vessel or pleasure vessels of any class; or
(ii)for any specified purpose;
and
(j)prescribing safety regulations in respect of the navigation, mooring and berthing of pleasure vessels; and
(k)regulating the provision and use on pleasure vessels of lights and signals.
(2)Without limiting in any way the powers conferred by subsection (1), the Governor may by regulation empower the chief executive officer to regulate by notice published in the Gazette times, places, and conditions in respect of any matter or thing for which regulations may be made under subsection (1)(b), (i) and (j) and such a notice has the force of law.
(3)Regulations made or a notice published under this section prescribing safety regulations may provide that where the chief executive officer is satisfied that appropriate measures are taken to ensure the safety of competitors, spectators and members of the public generally, specified pleasure vessels or persons or classes of pleasure vessels or persons engaged in aquatic events or exhibitions approved by the chief executive officer may be exempted by the chief executive officer from the requirement to carry all, or a specified part, of the required safety equipment and such an exemption may be granted unconditionally or subject to specified conditions.
[Section 99 amended: No. 35 of 1990 s. 14 and 21.]
Part VII — Investigations and inquiries
Nothing in this Act authorises the making of a preliminary inquiry or the holding of a formal investigation into the matter of a casualty occurring to a foreign ship (except so far as the same affects any Australian ship on an intra‑state voyage, any Australian fishing vessel not on an overseas voyage or any certificate of an officer granted by the Department or any other Australian marine authority) and subject to the same exception nothing in this Act authorises the making of a preliminary inquiry or the holding of a formal investigation into the matter of any incompetence or misconduct on the part of a master, mate, marine engineer, or marine engine driver of a foreign ship.
Division 2 — Preliminary investigations and powers
101.Preliminary inquiries and reports
(1)If the chief executive officer has reason to believe that —
(a)a casualty has occurred to a commercial vessel; or
(b)any incompetence or misconduct has occurred on the part of any certificated master, mate, marine engineer, marine engine driver or coxswain on a commercial vessel,
and that a Court of Marine Inquiry has jurisdiction in the matter of the casualty, incompetence, or misconduct and in the opinion of the chief executive officer it is expedient to do so, he shall direct that an official of the Department or some other person or persons appointed for the purpose by him shall make a preliminary inquiry respecting the casualty, incompetence, misconduct.
(2)The chief executive officer may, whenever he considers it expedient to do so, depute an official of the Department or, with the approval of the Minister, appoint any other person as an inspector, to report to him upon one or more of the following matters —
(a)whether in particular circumstances or in relation to a particular event this Act or regulations made under this Act have been complied with; and
(b)whether the hull, boilers, machinery, or any part of a ship or of any equipment or articles in or on board a ship to which this Act applies are sufficient and in good condition; and
(c)such other matters as the chief executive officer considers necessary to ensure compliance with this Act and the regulations under this Act.
[Section 101 amended: No. 35 of 1990 s. 21.]
102.Powers of investigators and inspectors
A person who is required to make a preliminary inquiry under section 101(1) or a report under section 101(2) may for the purpose of that inquiry or report —
(a)go on board any ship, to which the provisions of this Act apply, and inspect her or any part of her and any of the equipment, boilers and machinery, and articles in or on board and may require the unloading or removal of any cargo, ballast, or tackle, but shall not unnecessarily detain or delay the ship from proceeding on any voyage; and
(b)enter and inspect any premises the entry or inspection of which appears necessary to him; and
(c)by summons signed by him require the attendance of any person before him for examination and may require answers or returns to his questions or inquiries; and
(d)require and enforce the production of all books, papers, logs, accounts, agreements and other documents relating to his inquiry or report; and
(e)administer oaths or, instead of requiring or administering an oath, require a person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination.
103.Formal investigation by Court
Where it appears to the chief executive officer that a formal investigation into any casualty incompetence, or misconduct is necessary or desirable, the chief executive officer shall, either upon or in the absence of a preliminary inquiry under section 101, with the approval of the Minister refer the matter or matters for investigation to a Court of Marine Inquiry and the chief executive officer may prefer, or cause or permit to be preferred, before the Court a charge or charges of incompetence or misconduct, or both, on the part of masters, mates, marine engineers, marine engine drivers and coxswains.
[Section 103 amended: No. 35 of 1990 s. 21.]
Division 3 — Courts of Marine Inquiry
104.Governor may establish Court of Marine Inquiry
(1)The Governor, by proclamation, may establish a Court of Marine Inquiry to hear and determine an inquiry, investigation, appeal or reference under this Act.
(2)A Court of Marine Inquiry is a court of record.
(3)More than one Court of Marine Inquiry may be established at any one time.
(4)Subject to any rules made under section 108, the practice and procedure of a Court of Marine Inquiry shall be the same as that of the Magistrates Court exercising its civil jurisdiction.
(5)Subject to section 109(4) sections 15, 16, 35 and 36 and Part 3 Division 2 of the Magistrates Court Act 2004 apply to and in relation to a Court of Marine Inquiry and its officers in the same way as they apply to and in relation to the Magistrates Court and its officers.
[Section 104 inserted: No. 59 of 2004 s. 141; amended: No. 8 of 2009 s. 137(3).]
105.Magistrates and assessors to sit
(1)One or more magistrates nominated by the Chief Magistrate of the Magistrates Court shall constitute a Court of Marine Inquiry, and shall be assisted by 2 of the assessors appointed under this Act who shall have power to advise but not to adjudicate on any matter before the Court.
(2)Where the inquiry involves or appears likely to involve any question as to the cancelling or suspension of the certificate of a master, mate, marine engineer, marine engine driver or coxswain, the Court shall hold the inquiry with the assistance of not less than 2 assessors having experience in the merchant service, both of whom shall have had experience in the calling of the person concerned.
[Section 105 amended: No. 59 of 2004 s. 141.]
(1)Persons of nautical, engineering or other special skill or knowledge shall be appointed assessors to assist in a Court of Marine Inquiry.
(2)The Governor may make rules with regard to the appointment and summoning of assessors.
(3)Every assessor shall, for every day or portion of a day during which he is engaged in a Court of Marine Inquiry, or in attendance waiting to perform his duties in the Court, be paid such sum as is fixed by the chief executive officer from time to time.
(4)The chief executive officer shall furnish to the Minister lists of persons eligible for appointment as assessors of the Court of Marine Inquiry.
[Section 106 amended: No. 35 of 1990 s. 21.]
107.Officers of Court of Marine Inquiry
Officers of the Magistrates Court shall be officers of Courts of Marine Inquiry.
[Section 107 inserted: No. 59 of 2004 s. 141.]
(1)The Governor may make rules regulating the practice and procedure of Courts of Marine Inquiry and in particular —
(a)providing for sittings of the Court; and
(b)in respect of appeals before the Court, providing for security for costs and damages to be given; and
(c)prescribing fees and providing for the application of fees.
(2)Rules made under this section shall not be invalid by reason of any conflict with the Magistrates Court (Civil Proceedings) Act 2004.
(3)To the extent that the rules of practice and procedure of the Court do not apply to a particular matter or circumstance arising before the Court, the presiding magistrate may issue such directions as he considers appropriate.
[Section 108 amended: No. 59 of 2004 s. 141.]
Division 4 — The powers and duties of Courts of Marine Inquiry
109.Functions of Court of Marine Inquiry
(1)A Court of Marine Inquiry is authorised to and shall hold formal investigations —
(a)into casualties to commercial vessels;
(b)for the purpose of hearing and determining a charge or charges of incompetence or misconduct, or both, on the part of masters, mates, marine engineers, marine engine drivers or coxswains of commercial vessels holding certificates of competency or service in respect of incompetence or misconduct on any such vessel,
referred to it or preferred before it, as the case may be, under section 103.
(2)Where more than one matter is referred to a Court of Marine Inquiry under section 103 for formal investigation under subsection (1) and it appears to the Court that any number of the matters arise out of or relate to the same incident or a number of incidents in common, the Court may hold a formal investigation at the one hearing into such of the matters referred and to such of the charges preferred whether the charges have been preferred against one or more persons.
(3)An investigation shall not be held under this section into a matter —
(a)which has been the subject of an investigation or inquiry and has been reported on by a competent court or tribunal in any part of a Commonwealth country; or
(b)with reference to which an investigation or inquiry has been commenced in the United Kingdom.
(4)For the purposes of any inquiry under this section a Court of Marine Inquiry shall, so far as relates to the summoning of parties, compelling the attendance of witnesses, and contempt of court, have all the powers of the Supreme Court.
110.Powers and duties in respect of unsafe ships
(1)A Court of Marine Inquiry shall hear and determine in open court any appeal or reference under this Act in respect of the detention of a ship alleged to be unsafe and shall follow in any such appeal or reference the procedure under this Act for the investigation of casualties.
(2)The Court may appoint a competent person or persons to survey the ship and report to the Court.
(3)The presiding magistrate of the Court, an assessor and a person or persons appointed under subsection (2) may survey the ship and shall for the purposes of this section have all the powers of an inspector under section 102.
(4)The Court shall have the same power as the chief executive officer has to order the ship to be released or finally detained, but unless one of the assessors concurs in an order for the detention of the ship, the ship shall be released.
(5)The owner and master of the ship, any person appointed by the owner or master and any person appointed by the chief executive officer may attend at any inspection or survey made under this section.
(6)The presiding magistrate of the Court shall send to the Minister a report (in such form as may be directed by the Rules) and each assessor shall either sign the report as an expression of his concurrence or report to the Minister the reasons for his dissent.
[Section 110 amended: No. 47 of 1993 s. 33(2).]
111.Presiding magistrate and procedure
(1)The senior magistrate present shall preside at any sitting of a Court of Marine Inquiry.
(2)An investigation under this Act shall be conducted in open court and the presiding magistrate shall deliver the decision of the Court in open court.
(3)In the event of an equality of votes in relation to the matter for decision by the Court, the presiding magistrate shall have a casting as well as a deliberative vote.
(4)The Court may make such order as it thinks fit respecting the costs of any proceedings, and any costs awarded against any party to the proceeding may be recovered by the party in whose favour the order is made in any court of competent jurisdiction.
(5)The presiding magistrate shall, in every case forward to the Minister a copy of the decision of the Court, together with notes of the evidence given, and any member of the Court who dissents from the decision may likewise forward his written reasons for so dissenting.
112.Power of Court to suspend or cancel certificate
(1)A Court of Marine Inquiry has the power to cancel or suspend the certificate of a master, mate, marine engineer, marine engine driver or coxswain if the Court finds that he is incompetent or has been guilty of any gross act of misconduct or that he has failed in his duty in regard to a collision or in a matter relating to the navigation or management of a ship.
(2)A master, mate, marine engineer, marine engine driver or coxswain whose certificate is cancelled or suspended by a Court of Marine Inquiry shall deliver his certificate to the Court on demand, or, if not so demanded, to the Department or as the Department directs.
(3)A certificate shall not be cancelled or suspended by a Court of Marine Inquiry unless a copy of any charge against the holder of the certificate or a copy of the report on any preliminary inquiry containing or indicating any such charges, together with a copy of the evidence taken on that inquiry, has been served on him at least 48 hours before the commencement of the investigation into those charges.
(4)A master, mate, marine engineer, marine engine driver or coxswain who fails without reasonable cause to comply with subsection (2) is guilty of an offence.
Penalty: $500.
Where an investigation under this Part has been conducted by a Court of Marine Inquiry, the Governor may order the case to be reheard, either generally or as to a part of the case, and the Governor shall so order if —
(a)new and important evidence, which could not be produced at the investigation, has been discovered; or
(b)in the opinion of the Governor, there is for any other reason ground for suspecting that a miscarriage of justice has occurred.
Part 8 — Supplementary and administrative provisions
[Heading amended: No. 24 of 2023 s. 71.]
114.Powers in relation to regulations
(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act and in particular —
(a)providing for the control, supervision and guidance of the inspectors, officials and persons engaged by or on behalf of the Department and over whom, by virtue of this Act, the Minister or chief executive officer has control, and for prescribing the form and manner of signing of, and the persons authorised to sign, notices, certificates, returns, statements, declarations, licences and other documents to be given, made, or issued under this Act, and for the promulgation of all acts, matters and things necessary, expedient or convenient for carrying into operation or for facilitating the operation of this Act; and
(b)prescribing the fees, charges and expenses to be charged or made in respect of matters arising under or provided for or authorised by this Act; and
(c)prescribing the form or contents of applications, licences, permits, certificates, registers, notices, orders, exemptions, dispensations and other documents required for the purposes of this Act or authorising the Minister to specify forms required to be used.
(2)Regulations may be made under this Act, whether or not for the particular purposes of any Part or Division —
(a)so as to provide that —
(i)contravention or failure to comply with a regulation; or
(ii)the breach of a condition imposed in relation to any exemption or dispensation from the provisions of the regulations, or of a requirement of a proclamation or rule made, or order or notice published, under this Act,
constitutes an offence, and may provide for penalties not exceeding a fine of $1 000, and if the offence is a continuing offence a further fine not exceeding $50 for every day or part of a day during which the offence continues after notice of the offence, for such offences other than in those cases where a special penalty may be imposed under this Act in respect of a specific offence; and
(b)so as to prescribe a modified penalty not exceeding $300 for any offence, or class of offence, if dealt with under a section of this Act authorising the service of an infringement notice and the payment of a modified penalty in relation to such an offence; and
(c)so as to apply —
(i)generally or in a particular class of case or in particular classes of cases; and
(ii)at all times or at a specified time or at specified times; and
(iii)in all waters or in specified waters, or throughout the State or in a specified part or specified parts of the State;
and
(d)so as to require a matter affected by them to be —
(i)in accordance with a specified standard or specified requirement; or
(ii)as approved by, or to the satisfaction of, a specified person or body or a specified class of person or body;
and
(e)so as to confer on a specified person or body or a specified class of person or body a discretionary authority; and
(f)so as to provide that, in specified cases or a specified class of case or specified classes of cases whether on specified conditions or unconditionally, persons or things of a class or classes of persons or things may be exempted from the provisions of the regulations or of a requirement of any proclamation or rule made, or order or notice published pursuant to this Act, either wholly or to such extent as is specified; and
(g)so as to authorise the chief executive officer, at any time, to cancel an exemption or dispensation wholly or in part, and to cancel, or from time to time waive, add to, or otherwise vary the condition of an exemption or dispensation.
(3)In subsection (2) specified means specified in the regulations.
[Section 114 amended: No. 35 of 1990 s. 21.]
115.Regulations may adopt codes etc.
(1)Regulations made under this Act may —
(a)adopt, either wholly or in part or with modifications and either specifically or by reference, any subsidiary legislation or other instrument under any Act of the State, another Australian jurisdiction or the United Kingdom or any of the standards, rules, codes or specifications of the bodies known as Standards Australia, the British Standards Institution, the International Organization for Standardization, the Australian Maritime Safety Authority (established by the Australian Maritime Safety Authority Act 1990 (Commonwealth)) or other like body specified in the regulations; and
(b)incorporate by reference, with or without modification, all or any of the provisions of the Uniform Shipping Laws Code or the National Standard for Commercial Vessels; and
(c)provide that where by reason of unavailability of materials or other reason that the chief executive officer considers valid any requirement adopted by the rules or regulations cannot be conformed to, the chief executive officer may approve such use of materials or other matters as the chief executive officer considers to be consistent with the achievement of the objects of the rules or regulations.
[(2)deleted]
[Section 115 amended: No. 35 of 1990 s. 21; No. 74 of 2003 s. 130; No. 24 of 2023 s. 75.]
115A.Exemptions and equivalents
(1)The chief executive officer may exempt from the application of a specified provision of this Act or the regulations persons or vessels, or classes of person or vessel, if satisfied that compliance with the provision is unreasonable or impractical.
(1A)The chief executive officer may exempt from the application of a specified provision of this Act or the regulations persons or vessels, or classes of person or vessel, engaged in an aquatic event or activity, if satisfied that appropriate measures will be taken to ensure the safety of competitors, spectators and members of the public generally.
(1B)The chief executive officer must ensure that written notice of an exemption under this section is —
(a)if the exemption is under subsection (1) and for a person or in respect of a vessel — given to the person or master or owner of the vessel; or
(b)if the exemption is under subsection (1) and in respect of a class of person or vessel — made publicly available; or
(c)if the exemption is under subsection (1A) — given to the applicant for the exemption or the organiser of the aquatic event or activity.
(1C)Failure to comply with subsection (1B) does not affect the validity of an exemption.
(2)In exercising the power conferred by subsection (1) or (1A), the chief executive officer shall have regard to the principles embodied in this Act and the regulations made under this Act.
(3)Where under this Act provision is made that a particular fitting, material, appliance, or apparatus, or type thereof, shall be fitted or carried in a vessel or in vessels in a specified class of vessel, or that any particular provision shall be made, the chief executive officer may allow any other fitting, material, appliance, or apparatus, or type thereof, to be fitted or carried, or any other provision to be made if the chief executive officer is satisfied, by trial or otherwise, that such fitting, material, appliance, or apparatus, or such provision is at least as effective as that required under this Act.
(3A)Subsections (1B) and (1C) apply, with necessary modifications, to an allowance under subsection (3) in the same way as they apply to an exemption under this section.
(4)The chief executive officer may grant an exemption or make an allowance under this section subject to such conditions as the chief executive officer thinks fit.
(5)A person who fails to comply with a condition to which an exemption or allowance is subject commits an offence.
Penalty for this subsection: a fine of $5 000.
[Section 115A inserted: No. 35 of 1990 s. 15; amended: No. 24 of 2023 s. 77.]
(1)The Minister or the chief executive officer, as the case may be, (the delegator) may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers or duties under this Act, other than this power of delegation.
(2)For the purposes of this Act, the exercise of a power or the performance of a duty by a delegate under this section shall be deemed to be the exercise of the power or the performance of the duty by the delegator.
(3)A delegation under this section may be made to a specified person or to persons of a specified class, or may be made to the holder or holders for the time being of a specified office or class of offices.
(4)A delegation under this section may —
(a)be made subject to such conditions, qualifications and exceptions as are set out in the instrument of delegation;
(b)be revoked or varied by instrument in writing signed by the delegator.
(5)The delegator may exercise a power or perform a duty notwithstanding that he has delegated its exercise or performance under this section.
(6)Where, under this Act, the exercise of a power or the performance of a function by the delegator is dependent upon the opinion, belief or state of mind of the delegator in relation to a matter and that power or function has been delegated under this section, that power or function may be exercised or performed by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.
[Section 116 amended: No. 35 of 1990 s. 16.]
117.Appointment of inspectors and authorised officers
(1)The chief executive officer may designate officers of the Department or any other persons to be inspectors or surveyors for the purposes of this Act.
(2)The chief executive officer may in writing appoint persons to be authorised persons for the purposes of this Act or for the purposes of any Part, Division or provision of this Act and a person may be appointed either generally in relation to specified purposes or in relation to a particular case.
[Section 117 amended: No. 35 of 1990 s. 17 and 21.]
118.Certificate of appointment
(1)The chief executive officer shall issue to each authorised person who is not a member of the Police Force and to each inspector a certificate of his appointment in the prescribed form specifying that the person is an authorised person and the general nature of his function or that the person is an inspector, as the case may be, and the holder shall produce the certificate whenever required to do so by a person in respect of whom he has exercised or is about to exercise any of his powers under this Act.
(2)In the case of an inspector, the certificate issued under subsection (1) is also to specify any functions that the inspector has under other enactments by virtue of being an inspector.
[Section 118 amended: No. 35 of 1990 s. 21; No. 2 of 2019 s. 63.]
A person who wilfully assaults, obstructs, endeavours to intimidate, or uses abusive or offensive language to, or disobeys a lawful requisition or order of, a person (the official) performing or endeavouring to perform a power or duty conferred on the official by or under this Act, whether on board a vessel or elsewhere, is guilty of an offence and is liable to a fine not exceeding $5 000 and may be detained by the official or by any person whom the official may call to their assistance until the offender can be conveniently taken before a court having appropriate jurisdiction.
[Section 119 amended: No. 24 of 2023 s. 81.]
120.Penalty for false declarations etc.
A person who knowingly —
(a)makes a false declaration, false statement or false representation; or
(b)gives false evidence on oath,
in connection with an application or proceeding under this Act is guilty of an offence.
Penalty:
(a)for an individual — a fine of $5 000;
(b)for a body corporate — a fine of $10 000.
[Section 120 amended: No. 24 of 2023 s. 82.]
120A.Inspector may request details
(1)An inspector may request any person whom the inspector believes on reasonable grounds to have committed an offence under this Act to give the inspector 1 or more of the following —
(a)the person’s name;
(b)the person’s residential address;
(c)the person’s date of birth;
(d)evidence of the person’s identity.
(2)A person who fails to comply with a request made under subsection (1) or who gives false information when such a request is made commits an offence.
Penalty for this subsection: a fine of $5 000.
[Section 120A inserted: No. 24 of 2023 s. 83.]
121.Offences in connection with certificates, licences etc.
(1)A person shall not —
(a)knowingly make a false representation for the purpose of obtaining a certificate, licence, permit, exemption or dispensation either for themselves or for another person; or
(b)forge or fraudulently alter a certificate, licence, permit, exemption or dispensation; or
(c)fraudulently use a certificate, licence, permit, exemption or dispensation that is forged, altered, cancelled or suspended or to which the person is not justly entitled; or
(d)allow a person to use fraudulently a certificate, licence, permit, exemption or dispensation that does not relate to that person.
Penalty for this subsection:
(a)for an individual — a fine of $3 000;
(b)for a body corporate — a fine of $10 000.
(2)In this section, certificate, licence, permit, exemption or dispensation means a certificate, licence, permit, exemption or dispensation issued granted, or recognized under this Act and includes a certified copy of such a certificate, licence, permit, exemption or dispensation.
[Section 121 amended: No. 24 of 2023 s. 84.]
122.Liability of chief executive officer and owner for costs and compensation
(1)If it appears that there was not reasonable and probable cause, by reason of the condition of the ship or the act or default of the owner, for the provisional detention of a ship under Part III as an unsafe ship, the chief executive officer shall be liable to pay the owner of the ship his costs of and incidental to the detention and survey of the ship, and also compensation for any loss or damage sustained by him by reason of the detention or survey.
(2)If a ship is finally detained under Part III or if it appears that a ship provisionally detained was at the time of the detention an unsafe ship within the meaning of that Part, the owner of the ship shall be liable to pay to the Department the costs of and incidental to the detention and survey of the ship, which costs shall without prejudice to any other remedy be recoverable by the chief executive officer in any court of competent jurisdiction.
(3)For the purposes of this Act, the costs of and incidental to any proceeding before a Court of Marine Inquiry, and a reasonable amount in respect of the remuneration of the surveyor or other official of the Department, shall be part of the costs of the detention and survey of the ship; and any dispute as to the amount of the costs may be referred to the taxing officer of the Supreme Court who, on request made to him for that purpose by the chief executive officer, shall ascertain and certify the proper amount of costs.
(4)If a ship is so loaded that it is deemed by section 36(3) to be overloaded for the purposes of Division 8 of Part II, the ship shall be deemed to be an unsafe ship for the purposes of Part III and there shall for the purposes of this section be deemed to be reasonable and probable cause for the detention of the ship.
[Section 122 amended: No. 35 of 1990 s. 21.]
123.Complainant may be ordered to give security
(1)Where a complaint is made to the Department or to a detaining official that a ship is unsafe, the chief executive officer or a detaining official may require the complainant to give security to the satisfaction of the chief executive officer for the costs and compensation which the complainant may become liable to pay under this section.
(2)Where the complaint is made by one‑fourth, being not less than 2, of the crew belonging to the ship, and is not, in the opinion of the chief executive officer or detaining official, frivolous or vexatious, security shall not be required; and the chief executive officer or detaining official shall, if the complaint is made in sufficient time before the sailing of the ship, take proper steps for ascertaining whether the ship ought to be detained.
(3)Where a ship is detained in consequence of any complaint, and the circumstances are such that the chief executive officer is liable under this Act to pay to the owner of the ship any costs or compensation, the chief executive officer may by notice in writing given to the complainant require the complainant to pay to the chief executive officer the amount of all such costs and compensation as the chief executive officer incurs or is liable to pay in respect of the detention and survey of the ship, and failing payment the same may be recovered in any court of competent jurisdiction.
[Section 123 amended: No. 35 of 1990 s. 21.]
124.Immunity of Minister and officials
No liability shall attach to the Minister, the chief executive officer or any other official of the Department, or to any person acting with the authority or on the direction of the Minister or the chief executive officer in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Act.
[Section 124 amended: No. 35 of 1990 s. 21.]
Part 8A — Disqualification from holding or obtaining WA marine qualification
[Heading inserted: No. 31 of 2023 s. 23(1).]
[Heading inserted: No. 31 of 2023 s. 23(1).]
In this Part —
alleged offence, in relation to a person, has the meaning given in section 124GA(1);
disqualification notice has the meaning given in section 124GA(3);
disqualification order, in relation to a person, means an order made by a court on convicting the person for an offence that disqualifies the person from holding or obtaining a WA marine qualification for the period specified in the order;
disqualified, in relation to a person, means the person is disqualified from holding or obtaining a WA marine qualification by a disqualification order or under a disqualification notice.
[Section 124G inserted: No. 31 of 2023 s. 23(1).]
Division 3 — Provisions relating to disqualification orders by court
[Heading inserted: No. 31 of 2023 s. 23(3).]
This Division applies if a court sentencing a person for an offence makes a disqualification order in relation to the person.
[Section 124GK inserted: No. 31 of 2023 s. 23(3).]
124GL.Notifying chief executive officer of disqualification order
The court must ensure that the following information about a disqualification order is given to the chief executive officer —
(a)details of the order;
(b)details of the offence to which the disqualification relates;
(c)any other information prescribed for this section.
[Section 124GL inserted: No. 31 of 2023 s. 23(3).]
124GM.Removal of disqualification
(1)A disqualified person may apply to a court for an order removing the disqualification.
(2)However, the person cannot apply before the end of the following period, starting on the day on which the disqualification took effect —
(a)if the disqualification is for no more than 6 years — 3 years;
(b)if the disqualification is for more than 6 years but no more than 20 years — one‑half of the period of the disqualification;
(c)if the disqualification is for more than 20 years or is permanent — 10 years.
(3)The application must be made to —
(a)if the disqualification was imposed by the Supreme Court — the Supreme Court; or
(b)in any other case — the District Court.
(4)The court may make an order removing the disqualification from the day specified in the order or refuse the application.
(5)In deciding the application, the court must have regard to the following matters —
(a)the safety of the public generally;
(b)the character of the applicant;
(c)the circumstances of the case;
(d)the nature of the offence or offences giving rise to the disqualification;
(e)the conduct of the applicant subsequent to the disqualification.
[Section 124GM inserted: No. 31 of 2023 s. 23(3).]
124GN.Removal of disqualification: additional provisions
(1)A court to which an application is made under section 124GM may order the applicant to pay all or part of the costs of an application.
(2)The chief executive officer has a right to be heard in proceedings for the application.
(3)If the court refuses the application, a further application cannot be heard during the period of 1 year after the day of refusal.
(4)This section and section 124GM do not limit or otherwise affect any right a person may have to appeal against a disqualification order.
[Section 124GN inserted: No. 31 of 2023 s. 23(3).]
124GO.Notifying chief executive officer of disqualification order
A court ordering that the disqualification of a person be removed must ensure that the following information is given to the chief executive officer —
(a)details of the order;
(b)details of the disqualification;
(c)any other information prescribed for this section.
[Section 124GO inserted: No. 31 of 2023 s. 23(3).]
Division 4 — Effect of disqualifications and other matters
[Heading inserted: No. 31 of 2023 s. 23(3).]
124GP.Effect of disqualification
(1)A WA marine qualification held by a person is suspended while the person is disqualified.
(2)A WA marine qualification obtained by a person while the person is disqualified has no effect.
(3)Subsection (2) applies whether or not the person applied for the WA marine qualification before becoming disqualified.
(4)This section —
(a)does not operate to extend the period for which a WA marine qualification may be valid or effective beyond the time it would otherwise expire; and
(b)does not affect the cancellation of a WA marine qualification under regulations referred to in section 124GQ(a).
[Section 124GP inserted: No. 31 of 2023 s. 23(3).]
124GQ.Other effects of disqualification
The regulations may provide —
(a)for the circumstances in which a WA marine qualification held by a person who is disqualified under a disqualification order may be cancelled; and
(b)if a person is disqualified from holding or obtaining a marine qualification under the law of another Australian jurisdiction or an overseas jurisdiction, that —
(i)a WA marine qualification held by the person is suspended while the disqualification is in effect or may be cancelled; or
(ii)the person cannot obtain a WA marine qualification.
[Section 124GQ inserted: No. 31 of 2023 s. 23(3).]
124GR.Calculating period of disqualification
Any of the following periods do not count towards a period of disqualification for a person —
(a)a period during which the person is in custody serving a sentence of imprisonment;
(b)if the person appeals against the conviction or sentence that gave rise to the disqualification — the period starting when the person commences the appeal and ending when the appeal is decided, dismissed or withdrawn.
[Section 124GR inserted: No. 31 of 2023 s. 23(3).]
124GS.Navigating certain vessels when disqualified from holding or obtaining WA marine qualification
(1)In this section —
navigate, a vessel, has the meaning given in section 75AA(2);
relevant vessel means a vessel for which a WA marine qualification is required to navigate it under this Act.
(2)A person commits an offence if the person navigates a relevant vessel while the person is disqualified.
Penalty for this subsection:
(a)for a first offence, imprisonment for 12 months or a fine of not less than $400 or more than $2 000;
(b)for a second or subsequent offence, imprisonment for 18 months or a fine of not less than $1 000 or not more than $4 000.
(3)A court sentencing a person for an offence against subsection (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 3 months or more than 9 months.
(4)A period of disqualification ordered under subsection (3) is cumulative upon —
(a)another period for which the person is disqualified; or
(b)if a WA marine qualification held by the person is suspended when the order is made — the period of suspension.
(5)It is a defence to a charge of an offence against subsection (2) for the person charged to prove that the person —
(a)held an exemption issued by the chief executive officer under this Act from holding a WA marine qualification; and
(b)was navigating the vessel in accordance with the exemption at the time the alleged offence was committed.
(6)A police officer may arrest a person for an offence against subsection (2) without a warrant.
[Section 124GS inserted: No. 31 of 2023 s. 23(3).]
[Heading amended: No. 24 of 2023 s. 87.]
Division 2 — Provisions relating to sentencing for dangerous navigation and alcohol and drug related offences
[Heading inserted: No. 31 of 2023 s. 24(2).]
In this Division —
young person has the meaning given in the Young Offenders Act 1994 section 3(1).
[Section 124I inserted: No. 31 of 2023 s. 24(2).]
124IA.Limitation on period for which previous offences taken into account
(1)This section applies if a person is convicted of an offence against Part 3A or 3B and the penalty for the offence varies according to whether the person has been previously convicted for another offence.
(2)If a person’s conviction for a previous offence was recorded more than 20 years before the commission of the offence for which the person is being sentenced, the previous offence must not be taken into account in determining the penalty to be imposed.
[Section 124IA inserted: No. 31 of 2023 s. 24(2).]
124IB.Sentencing for particular offences: option for community based order or youth community based order
(1)This section applies if a court is sentencing a person who has been convicted of —
(a)a first offence against a section mentioned in Table 1; or
Table 1 — Offences
|
Section no. |
Section heading |
|
s. 75C(1) |
Navigation of vessel while under influence of alcohol or drugs |
|
s. 75CA(1) |
Navigation of vessel while under influence of both alcohol and drugs |
|
s. 75HB(1) |
Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place |
|
s. 75HC(1) |
Failure to comply with requirement: incident occasioning death, grievous bodily harm or bodily harm |
|
s. 75HI(1) |
Failure to comply with drug testing requirement: BAC of 0.15 or above |
(b)any offence against a section mentioned in Table 2.
Table 2 — Offences
|
Section no. |
Section heading |
|
s. 75DA(1) |
Navigation of vessel while BAC is 0.08 or above |
|
s. 75DD(1) |
Navigation of vessel while BAC is 0.08 or above and prescribed illicit drug present |
|
s. 75H(1) |
Failure to comply with requirement: preliminary breath test, preliminary oral fluid test or boarding or moving vessel |
|
s. 75HH(1) |
Failure to comply with drug testing requirement: BAC of 0.08 or above |
(2)The court may, instead of imposing a fine —
(a)order the release of the person; and
(b)impose a community based order under the Sentencing Act 1995 with at least a community service requirement as a primary requirement of the order.
(3)If the offender is a young person, the court may, instead of imposing a fine, make a youth community based order under the Young Offenders Act 1994, imposing at least community work conditions on the offender.
(4)Subsection (3) applies subject to sections 50, 50A and 50B of the Young Offenders Act 1994.
[Section 124IB inserted: No. 31 of 2023 s. 24(2).]
124IC.Sentencing for particular offences if community based order or intensive supervision order imposed
(1)This section applies if —
(a)a court is sentencing a person who has been convicted of —
(i)an offence against section 75HG(1) (Failure to comply with drug testing requirement: BAC of 0.05 or above); or
(ii)a second or subsequent offence against a section specified in the Table;
Table — Offences
|
Section no. |
Section heading |
|
s. 75C(1) |
Navigation of vessel while under influence of alcohol or drugs |
|
s. 75CA(1) |
Navigation of vessel while under influence of both alcohol and drugs |
|
s. 75HB(1) |
Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place |
|
s. 75HC(1) |
Failure to comply with requirement: incident occasioning death, grievous bodily harm or bodily harm |
|
s. 75HI(1) |
Failure to comply with drug testing requirement: BAC of 0.15 or above |
and
(b)the court orders the release of the offender; and
(c)the court imposes —
(i)a community based order or an intensive supervision order under the Sentencing Act 1995; or
(ii)if the offender is a young person — a youth community based order or an intensive youth supervision order under the Young Offenders Act 1994.
(2)If the court imposes an order referred to in subsection (1)(c)(i), the court must impose at least a community service requirement as a primary requirement of the community based order or intensive supervision order.
(3)If the court imposes an order referred to in subsection (1)(c)(ii), the court must impose community work conditions on the offender as part of the youth community based order or intensive youth supervision order.
[Section 124IC inserted: No. 31 of 2023 s. 24(2).]
124ID.Pre‑sentence report required for sentencing for navigation while impaired by drugs
A court sentencing a person who has been convicted of an offence against section 75CD(1) (Navigation of vessel while impaired by drugs) must order a pre‑sentence report about the offender under the Sentencing Act 1995 Part 3 Division 3.
[Section 124ID inserted: No. 31 of 2023 s. 24(2).]
124IE.Sentencing for first offence of navigation while impaired by drugs or failure to comply with drug impairment assessment
(1)This section applies if a court is sentencing a person who has been convicted of a first offence against —
(a)section 75CD(1) (Navigation of vessel while impaired by drugs); or
(b)section 75HE(1) (Failure to comply with requirements relating to assessment of drug impairment).
(2)Despite the Sentencing Act 1995 section 39(3) and (4), the court must, instead of or in addition to imposing a fine —
(a)order the release of the person; and
(b)impose a community based order under the Sentencing Act 1995 with at least a programme requirement as a primary requirement of the order.
(3)If the offender is a young person, the court must, instead of or in addition to imposing a fine, make a youth community based order under the Young Offenders Act 1994, imposing at least attendance conditions on the offender.
(4)Subsection (3) applies —
(a)subject to sections 50, 50A and 50B of the Young Offenders Act 1994; and
(b)despite section 74 of that Act.
[Section 124IE inserted: No. 31 of 2023 s. 24(2).]
124IF.Sentencing for second or subsequent offence of navigation while impaired by drugs or failure to comply with drug impairment assessment
(1)This section applies if a court is sentencing a person who has been convicted of a second or subsequent offence against —
(a)section 75CD(1) (Navigation of vessel while impaired by drugs); or
(b)section 75HE(1) (Failure to comply with requirements relating to assessment of drug impairment).
(2)The court must, instead of or in addition to imposing a fine, order the release of the person and impose either of the following under the Sentencing Act 1995 —
(a)a community based order with at least a supervision requirement and a programme requirement as primary requirements of the order; or
(b)an intensive supervision order with at least a programme requirement as a primary requirement of the order.
(3)Subsection (2) applies despite the Sentencing Act 1995 section 39(3) and (4).
(4)If the offender is a young person, the court must, instead of or in addition to imposing a fine —
(a)make a youth community based order or an intensive youth supervision order under the Young Offenders Act 1994; and
(b)impose at least attendance conditions and supervision conditions on the offender.
(5)Subsection (4) applies —
(a)subject to sections 50, 50A and 50B of the Young Offenders Act 1994; and
(b)despite section 74 of that Act.
(6)Subsections (2) and (4) do not apply if the court imposes a custodial sentence on the offender.
[Section 124IF inserted: No. 31 of 2023 s. 24(2).]
124IG.Mandatory disqualification
(1)This section applies if this Act requires a court sentencing a person for an offence to disqualify the offender from holding or obtaining a WA marine qualification for —
(a)a specified period, or permanently, in relation to the offence; or
(b)a period not less than a specified minimum period in relation to the offence; or
(c)a period not less than a specified minimum period, and no more than a specified maximum period, in relation to the offence.
(2)Regardless of any sentence the court imposes on the offender for the offence, the court —
(a)must disqualify the offender for the specified period, or at least the specified minimum period and more than the specified maximum period; and
(b)cannot reduce the period of disqualification other than by the period the offender was disqualified by a disqualification notice given to the offender under section 124GA in relation to the offence.
(3)Without limiting subsection (2)(b), the specified period of disqualification cannot be reduced in mitigation.
(4)This section applies despite any other written law.
[Section 124IG inserted: No. 31 of 2023 s. 24(2).]
Without limiting the Sentencing Act 1995, and despite any other written law, a fine provided for an offence under Part 3A or Part 3B of this Act that is a minimum penalty (however expressed) cannot be reduced in mitigation.
[Section 124IH inserted: No. 31 of 2023 s. 24(2).]
[Heading inserted: No. 31 of 2023 s. 25.]
125.Evidence of documents and proof of signature
(1)All documents whatever purporting to be issued or written under this Act by or under the direction of or with the authority of the Minister, the Department or the chief executive officer and purporting to be signed by a person acting with the authority of the Minister, the Department or the chief executive officer, as the case may be, shall be admissible as evidence and be deemed, on production by any person, to have been so written and so signed until evidence to the contrary is shown.
(2)In this section, document includes certificate, permit, licence, exemption, dispensation, and register.
(3)A document required by or under this Act to be executed in the presence of or attested by a witness may be proved by the evidence of any person who is able to bear witness to the facts of execution or attestation without calling any attesting witness.
[Section 125 amended: No. 35 of 1990 s. 21.]
125A.Limitation period for prosecutions
A prosecution for an offence under this Act or any subsidiary legislation under this Act must be commenced within 3 years after the date on which the offence was allegedly committed.
[Section 125A inserted: No. 84 of 2004 s. 80; amended: No. 24 of 2023 s. 88.]
126.Admissibility of documents in evidence
(1)Where a document is by this Act declared to be admissible in evidence, it shall, on production from the proper custody, be admissible in evidence in any court, or before any person having by law or consent of parties authority to receive evidence, and, subject to all just exceptions, shall be evidence of the matters stated therein in pursuance of this Act or in pursuance of any duty under this Act.
(2)A copy of, or extract from, any such document shall also be admissible in evidence if —
(a)it is proved to be an examined copy or extract; or
(b)it purports to be signed and certified as a true copy or extract by the officer to whose custody the original document was entrusted,
and that officer shall, upon payment of the prescribed fee, furnish a copy or extract so certified to any person applying for it.
(3)The provisions of this section shall be without prejudice to those of the Evidence Act 1906.
127.Service of summons and process
(1)Service of any summons or other process in any legal proceeding under this Act shall be deemed good service if made —
(a)personally on the person to be served; or
(b)at the person’s last known place of abode or business; or
(c)on board any vessel to which the person belongs and accompanied with a statement of the purport thereof, to the person being or appearing to be the master of the vessel.
(2)In subsection (1) —
legal proceeding under this Act includes any proceeding under the State Administrative Tribunal Act 2004 in a matter commenced by an application under this Act for a review.
[Section 127 amended: No. 55 of 2004 s. 1312; No. 24 of 2023 s. 89.]
128.Service of notice where no master
Where any order, notice, statement or document is required for the purpose of any provision of this Act to be served on the master of a ship, it shall be served, where there is no master and the ship is within the limits of Australia, on the managing owner of the ship, or, if there is no managing owner, on some agent of the owner residing in Australia, or, where no such agent is known or can be found, by affixing a copy thereof to the mast of the ship.
129.Averments relating to vessels
In a prosecution under this Act, an averment in the charge as to 1 of the following matters is, in the absence of evidence to the contrary, sufficient evidence of the matter —
(a)that a person is, or was at a specified time, the owner, master or operator of a specified vessel;
(b)that a specified vessel is, or was at a specified time, a domestic commercial vessel, a pleasure vessel or a prescribed vessel;
(c)that a specified vessel is not, or was not at a specified time, exempt from a specified provision of this Act;
(d)that a specified vessel is, or was at a specified time, registered or licensed or required to be registered or licensed under an Act;
(e)that a vessel is or was in or used in navigable waters.
[Section 129 inserted: No. 24 of 2023 s. 91.]
130.Averment relating to qualifications of crew
In a prosecution under this Act relating to the crewing of a vessel, an averment in the charge that a person is or was, or is not or was not, the holder of a particular certificate or qualification or a particular class of certificate or qualification is sufficient evidence of that fact in the absence of evidence to the contrary.
[Section 130 amended: No. 84 of 2004 s. 80; No. 24 of 2023 s. 92.]
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, either —
(a)in the place in which it actually was committed or arose; or
(b)in any place in which the offender or person complained against is.
132.Proceedings by way of infringement notice
(1)An authorised person who believes on reasonable grounds that a person has committed an offence under this Act, in respect of which offence a modified penalty is prescribed, may serve, by personal delivery to the person or by posting to him at his address ascertained from him at or about the time that offence is believed to have been committed, a notice (an infringement notice) in the prescribed form informing the person that if he does not wish to be prosecuted for the alleged offence in a court he may pay to a designated officer, not being a designated officer who is the authorised person serving that notice, within a period of 28 days after the date of service of that notice, the amount of the modified penalty.
(2)If the alleged offence was allegedly committed in connection with a vessel, an authorised person may —
(a)if the identity of the alleged offender is not known and cannot immediately be ascertained — address the infringement notice concerned to, and serve it on, the owner of the vessel concerned within a period of 30 days after the date on which the alleged offence is believed to have been committed; or
(b)if the identity of the alleged offender is not known and cannot immediately be ascertained and the identity of the owner of the vessel is not known and cannot be ascertained after reasonable enquiry — address the infringement notice concerned to the owner of that vessel, without naming him or stating his address, and serve that infringement notice by attaching it to that vessel or by leaving it in or on the vessel within the period referred to in paragraph (a).
(3)When, under subsection (2) an infringement notice is addressed to and served on the owner of a vessel within the period referred to in paragraph (a) of that subsection or addressed to the owner of a vessel and served by attaching it to the vessel or leaving it in or on the vessel within that period, then, unless within a period of 21 days after the date of service of the infringement notice —
(a)the modified penalty concerned is paid; or
(b)the owner of the vessel —
(i)informs an authorised person of the identity and address of the person who was in charge of the vessel; or
(ii)satisfies an authorised person that the vessel had been stolen or unlawfully taken, or was being unlawfully used,
at the time when the alleged offence is believed to have been committed,
the owner of the vessel is, in the absence of proof to the contrary, deemed to be the person who was in charge of the vessel at the time when the alleged offence is believed to have been committed.
(4)A person on whom an infringement notice is served —
(a)may decline; or
(b)if he fails to pay the modified penalty concerned within a period of 21 days after the date of that service, is deemed to have declined,
to be dealt with under the provisions of this section.
(5)An authorised person may, whether or not the modified penalty concerned has been paid, withdraw an infringement notice at any time within a period of 28 days after it is served by sending to the alleged offender a notice in the prescribed form signed by the authorised person and advising the alleged offender that the infringement notice has been withdrawn.
(5A)An authorised person may not withdraw an infringement notice under subsection (5) if the authorised person served the infringement notice.
(6)The amount of any modified penalty paid pursuant to an infringement notice which has been withdrawn under subsection (5) shall be refunded.
(7)When a modified penalty has been paid pursuant to an infringement notice and the infringement notice has not been withdrawn under subsection (5), proceedings shall not be brought against any person in respect of the alleged offence specified in the infringement notice.
(8)A person, other than the owner or person in charge of a vessel in respect of which an alleged offence is believed to have been committed, shall not remove an infringement notice relating to the alleged offence attached to or left in or on that vessel by an authorised person.
Penalty for this subsection: a fine of $2 000.
(9)An infringement notice served under subsection (2) shall contain, inter alia, a short statement of the effect of subsection (3).
(10)The Minister may by notice published in the Gazette designate a public service officer or class of public service officer, within the meaning of the Public Sector Management Act 1994, to receive payment of the amounts of modified penalties.
(11)In this section, unless the context otherwise requires —
alleged offence means offence referred to in subsection (1);
alleged offender means person who is believed by the authorised person concerned to have committed an alleged offence;
authorised person includes an inspector;
designated officer means person designated under subsection (10).
(12)In subsection (3) —
person who was in charge of the vessel includes the person who was the driver, master, possessor, skipper, owner or user of the vessel or the person causing, permitting or suffering the vessel to be navigated, as the case requires.
[Section 132 amended: No. 47 of 1993 s. 33(2); No. 32 of 1994 s. 19; No. 84 of 2004 s. 80; No. 2 of 2019 s 64; No. 24 of 2023 s. 93.]
133.Onus on owner to identify person in charge of vessel
(1)Any owner of a vessel and any person to whom for the time being the possession or control of a vessel may be entrusted shall, if required by an authorised person, give to the authorised person any information —
(a)which it is in the owner’s or other person’s power to give; and
(b)which may lead to the identification of the person who was in charge of the vessel at the time when an offence under this Act is alleged to have been committed.
Penalty for this subsection: a fine of $3 000.
(2)When an offence under this Act is alleged to have been committed in connection with a vessel and the identity of the person who was in charge of the vessel in respect of which that allegation is made is not known and cannot immediately be ascertained, an authorised person may, within a period of 30 days after the date on which that offence is alleged to have been committed, serve on the owner of that vessel a notice in the prescribed form containing particulars of that offence and requiring that owner to identify the person who was in charge of that vessel at the time when that offence is alleged to have been committed.
(3)When, under the provisions of subsection (2), notice is served on the owner of a vessel within the period specified in that subsection then, unless within 21 days after the date of the service of the notice that owner —
(a)informs an authorised person of the identity and address of the person who was in charge of the vessel; or
(b)satisfies an authorised person that the vessel had been stolen or unlawfully taken, or was being unlawfully used,
at the time when the offence concerned is alleged to have been committed, that owner is, in the absence of proof to the contrary, deemed to be the person who was in charge of the vessel at the time when that offence is alleged to have been committed.
(4)A notice served under subsection (2) shall contain, inter alia, a short statement of the effect of subsection (3).
(5)In this section —
authorised person has a meaning affected by section 132;
person who was in charge of the vessel includes the person who was the driver, master, possessor, skipper, owner or user of the vessel or the person causing, permitting or suffering the vessel to be navigated, as the case requires.
[Section 133 amended: No. 24 of 2023 s. 94.]
134.Production of proof of identity by authorised person
(1)The chief executive officer shall issue to each authorised person, other than an authorised person who is an inspector, a certificate in the prescribed form.
(2)An authorised person —
(a)who is not an inspector shall produce the certificate issued to him under subsection (1); or
(b)who is an inspector shall produce the certificate issued to him by the chief executive officer in connection with his appointment as an inspector,
whenever required to do so by any person in respect of whom he has exercised or is about to exercise any of his powers under section 132 or 133.
(3)In any proceedings under this Act, production of a certificate referred to in subsection (2) is conclusive evidence in any court of the authorisation or appointment, as the case requires, by reason of which the person to whom that certificate relates became an authorised person and of his authority to exercise the powers conferred on an authorised person by sections 132 and 133.
(4)In this section —
authorised person has the meaning given by section 132.
[Section 134 amended: No. 35 of 1990 s. 21.]
Part 10 —
[Heading inserted: No. 24 of 2023 s. 96.]
Division 1 — Western Australian Marine Act 1982
[Heading inserted: No. 24 of 2023 s. 97.]
(1)The Western Australian Marine Act 1948‑1980 is repealed.
(2)Part VIII of the Merchant Shipping Act is repealed.
(3)In this Part, Merchant Shipping Act means the Imperial Act known as the Merchant Shipping Act 1894, as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act or of any Act, in so far as that Act, as so amended or otherwise affected in its operation, is part of the law of the State.
(4)The right of a shipowner to limit his liability in respect of a claim arising out of an occurrence that took place before the coming into operation of this section is not affected by the repeal of Part VIII of the Merchant Shipping Act by subsection (2) or by the provisions of Divisions 1 and 4 of Part IV of this Act.
Division 2 — Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023
[Heading inserted: No. 24 of 2023 s. 99.]
136.Certain orders, notices, exemptions and certificates
(1)An order in effect under section 66(1) immediately before the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 50(1) comes into operation has effect on and after that day as if made by the chief executive officer under section 66(1).
(2)A notice in effect under section 67(1) immediately before the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 51 comes into operation has effect on and after that day as if it were an order under section 67(1).
(3)A notice in effect under section 99(2) immediately before the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 69 comes into operation has effect on and after that day as if it were an exemption granted under section 115A(1), to the extent not inconsistent with section 115A(1).
(4)An exemption in effect under section 99(3) immediately before the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 69 comes into operation has effect on and after that day as if it were granted under section 115A(1) or (1A) or both.
(5)A certificate in effect under section 118 or 134 immediately before the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 79 comes into operation continues to have effect on and after that day as if it were an identity card issued under section 118 on the same terms and conditions as the certificate.
(6)An order, notice, exemption or certificate that has effect under this section has effect subject to this Act.
[Section 136 inserted: No. 24 of 2023 s. 99.]
(1)In this section —
commencement day means the day on which the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 section 36 comes into operation;
publication day, in relation to transitional regulations, means the day on which the transitional regulations are published on the WA legislation website;
transitional regulations means regulations made for the purposes of subsection (2).
(2)The regulations may deal with matters of a transitional, savings or application nature arising in connection with the enactment of the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 Parts 9 and 10.
(3)Transitional regulations cannot be made after the end of the period of 2 years beginning on commencement day.
(4)If transitional regulations provide that a state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than publication day, but not earlier than commencement day, the regulations have effect according to their terms.
(5)If transitional regulations contain a provision referred to in subsection (4), the provision does not operate so as to —
(a)affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before publication day; or
(b)impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before publication day.
[Section 137 inserted: No. 24 of 2023 s. 99.]
Division 3 — Western Australian Marine Amendment Act 2023
[Heading inserted: No. 31 of 2023 s. 27.]
138.Offences against repealed section 59
(1)In this section —
repeal day means the day on which the Western Australian Marine Amendment Act 2023 section 9 comes into operation.
(2)Despite The Criminal Code section 11, a person may be prosecuted and punished for an offence committed against section 59 before repeal day.
[Section 138 inserted: No. 31 of 2023 s. 27.]
(1)In this section —
assent day means the day on which the Western Australian Marine Amendment Act 2023 receives the Royal Assent;
publication day, for transitional regulations, means the day on which the transitional regulations are published in accordance with the Interpretation Act 1984 section 41;
specified means specified or described in transitional regulations;
transitional matter —
(a)means a matter or issue of a transitional nature that arises because of the enactment of the Western Australian Marine Amendment Act 2023; and
(b)includes a saving or application matter.
(2)Regulations (transitional regulations) may do either or both of the following —
(a)make any provision that is necessary or convenient for dealing with a transitional matter; or
(b)make any provision that is necessary or convenient in consequence of, or for giving effect to, the enactment of the Western Australian Marine Amendment Act 2023.
(3)Transitional regulations may provide that specified provisions of this Act —
(a)do not apply to, or in relation to, a specified matter or thing; or
(b)apply with specified modifications to, or in relation to, a specified matter or thing.
(4)If transitional regulations provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than publication day but not earlier than assent day, the transitional regulations have effect according to their terms.
(5)If transitional regulations contain a provision referred to in subsection (4), the provision does not operate so as to —
(a)affect in a manner prejudicial to a person (other than the State or an authority of the State) the rights of that person existing before publication day; or
(b)impose liabilities on a person (other than the State or an authority of the State) in respect of an act done or omission made before publication day.
[Section 139 inserted: No. 31 of 2023 s. 27.]
