New South Wales: Marine Safety Act 1998 (NSW)

Marine Safety Act 1998 No 121 An Act relating to marine safety and other matters; to repeal the Maritime Services Act 1935, the Navigation Act 1901, the Commercial Vessels Act 1979 and certain other marine legislation. Part 1 Preliminary 1 Name of Act This Act is the Marine Safety Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to ensure the safe operation of vessels in ports and other waterways, (b) to promote the responsible operation of vessels in those waters so as to protect the safety and amenity of other users of those waters and the amenity of occupiers of adjoining land, (b1) to provide an effective framework for the enforcement of marine legislation, (c) to provide for the investigation of marine accidents and for appropriate action following any such investigation, (d) to consolidate marine safety legislation. 4 Definitions (1) In this Act— authorised officer means— (a) a harbour master, or (b) a police officer, or (c) a person (or a person of a class) appointed as an authorised officer under section 96. commercial purpose means a purpose for which a vessel is used that results in the vessel being a commercial vessel. commercial vessel has the same meaning as domestic commercial vessel in the National law. crew of a vessel means the persons (including the master of the vessel) whose duty it is to navigate or work the vessel or to carry out other operations on the vessel. defence vessel has the same meaning as in the National law. exercise a function includes perform a duty. foreign vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth. function includes a power, authority or duty. harbour master means a person appointed as harbour master under Part 7 and, in relation to a function of a harbour master under the marine legislation, includes a person appointed under Part 7 to exercise that function. length means length overall. marine legislation means any of the following Acts (and the regulations and other instruments made under any of those Acts)— this Act, Ports and Maritime Administration Act 1995, Marine Pollution Act 2012. marine pilot of a vessel means the person who has the conduct of the vessel but who does not belong to the vessel. marine safety licence means a marine safety licence referred to in section 29. master of a vessel means the person having the command or charge of the vessel, but does not include a marine pilot. National law means— (a) the Commonwealth domestic commercial vessel national law within the meaning of section 9B, and (b) the applied provisions within the meaning of section 9B. National licence means a certificate or unique identifier issued under the National law. navigable waters means all waters (whether or not in the State) that are from time to time capable of navigation and are open to or used by the public for navigation, whether on payment of a fee or otherwise. navigation aid means any device used for the safety of navigation (such as a beacon, buoy or marine mark), but does not include a device on board a vessel. operate a vessel includes— (a) to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and (b) to pilot the vessel, and (c) in the case of the owner of the vessel, to cause or allow the vessel to be operated by someone else. overseas voyage has the same meaning as in the Navigation Act 2012 of the Commonwealth. owner of a vessel is defined in section 7. pilotage and pilotage port have the same meanings as in Part 6. port includes any of the following waters (or any part of those waters)— (a) any harbour or haven, whether natural or artificial, (b) any estuary, channel, river, creek or roadstead, (c) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers. Port Authority of New South Wales means the Newcastle Port Corporation established under the Ports and Maritime Administration Act 1995. prescribed illicit drug has the same meaning as in the Road Transport Act 2013. recreational vessel means a vessel other than a commercial vessel. regulated Australian vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth. responsible licensing official, in relation to a marine safety licence, means— (a) Transport for NSW, in the case of any of the following kinds of licences— (i) a boat driving licence—being a marine safety licence to operate a power-driven recreational vessel that is required by Division 5 of Part 5, (ii) a vessel registration certificate—being a marine safety licence for a vessel that is required by Division 2 of Part 5, and (b) the Minister, in any other case. State registrable vessel is defined in section 49. State waters means any navigable waters within the limits of the State or the coastal waters of the State (within the meaning of Part 10 of the Interpretation Act 1987). Note. Part 10 of the Interpretation Act 1987 defines coastal waters of the State generally as that part of the territorial sea of Australia that is within 3 nautical miles of the coast. The Marine Pollution Act 2012 defines State waters differently for the purposes of that Act. The definition in the Marine Pollution Act 2012 extends to waters within the limits of the State. Transport for NSW or TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. vessel is defined in section 5. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, a vessel is taken to be proceeding on a voyage from when it gets underway for the voyage until it gets underway for another voyage. (3) Notes in the text of this Act do not form part of this Act. Note. Penalties for offences are expressed in penalty units. Under the Interpretation Act 1987, the amount of a penalty unit was $110 on the enactment of this Act. 5 Meaning of "vessel" (1) In this Act, vessel includes water craft of any description used or capable of being used as a means of transportation on water. (2) Without limiting the above, a vessel includes— (a) any non-displacement craft, and (b) a seaplane, but only while it is on water. (3) However, a vessel does not include anything declared by the regulations not to be a vessel and includes anything used on water that is declared by the regulations to be a vessel. 6 Meaning of vessel "connected with this State" A vessel is connected with this State for the purposes of this Act if— (a) the vessel is registered, or is required to be registered, under the marine legislation, or (b) the vessel is registered under the Shipping Registration Act 1981 of the Commonwealth, or the National law, with a home port in this State, or (c) the vessel is owned by a person who is ordinarily resident in this State, or (d) the vessel is owned by a person whose place of business, or principal place of business, is in this State, or (e) the vessel is owned by a person whose principal place of business for managing the vessel's operation is in this State, or (f) the vessel is declared by the regulations to be a vessel connected with this State. 7 Meaning of "owner" of vessel (1) In this Act, owner of a vessel means (subject to this section) the person who owns the vessel. (2) A reference in this Act to the owner of a vessel includes a reference to— (a) a person registered as the vessel's owner in the relevant marine safety licence, National licence or other certificate of registry for the vessel, or (b) a person who is the charterer of the vessel. (3) A reference in this Act to the owner of a vessel includes a reference to a joint owner of the vessel. (4) A reference in this Act to the owner of a vessel includes a reference to any person who, whether on the person's own behalf or on behalf of another— (a) exercises any of the functions of the owner of the vessel, or (b) publicly represents that the person has those functions or accepts the obligation to exercise those functions. (5) For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired. 8 Vessels and waters to which Act applies (1) This Act applies to and in respect of the following vessels (and their owners, masters, crew and passengers)— (a) all vessels that are in State waters (including vessels proceeding on overseas voyages), (b) all vessels that are proceeding on voyages other than overseas voyages (including vessels that have left State waters), except recreational vessels while they are in the waters of or adjacent to another State or Territory of the Commonwealth, (c) all vessels connected with this State, wherever they may be. (2) Despite subsection (1), Parts 4 and 5 (other than sections 67 (b) and 69 and provisions relating to the marine safety licences specified in section 29 (f), (g) and (g1)) do not apply to or in respect of commercial vessels, foreign vessels or regulated Australian vessels. (3) This section is subject to any express provision of this Act to the contrary. (4) The National law prevails over this Act to the extent of any inconsistency. 9 Act does not apply to defence vessels This Act does not apply to or in respect of a defence vessel. Part 1A Application of Commonwealth domestic commercial vessel national law Division 1 Preliminary 9A Purpose of Part (1) The purpose of this Part is to adopt in this State a national approach to the regulation of marine safety in relation to domestic commercial vessels (the domestic commercial vessel national law). (2) Accordingly, this Part— (a) applies the Commonwealth domestic commercial vessel national law as a law of this State, and (b) makes provision to enable the Commonwealth domestic commercial vessel national law and the applied law of this State to be administered on a uniform basis by the Commonwealth (and by State officials as delegates of the Commonwealth) as if they constituted a single law of the Commonwealth. 9B Definitions (1) In this Part— applied provisions means the Commonwealth domestic commercial vessel national law that applies as a law of this State because of section 9C. Commonwealth administrative laws means the following Commonwealth Acts, regulations or other legislative instruments— (a) the Administrative Appeals Tribunal Act 1975 (excluding Part IVA), (b) the Freedom of Information Act 1982, (c) the Ombudsman Act 1976, (d) the Privacy Act 1988, (e) the regulations and other legislative instruments in force under any of those Acts. Commonwealth domestic commercial vessel national law means the provisions of the following Acts, regulations or other legislative instruments— (a) the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth (being the provisions applying as a law of the Commonwealth because of section 4 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth), (b) the regulations and other legislative instruments in force under that Law, (c) any other provision of a Commonwealth Act (or of a regulation or other legislative instrument in force under a Commonwealth Act) that is of a savings or transitional nature consequent on the enactment or amendment of that Law. (2) Terms used in this Part and also in the Commonwealth domestic commercial vessel national law have the same meanings in this Part as they have in that law. (3) In this Part, a reference to a Commonwealth Act includes a reference to— (a) that Commonwealth Act, as amended and in force for the time being, and (b) an Act enacted in substitution for that Act and, if it is amended, as amended and in force for the time being. Division 2 The applied provisions 9C Application of Commonwealth laws as laws of this State (1) The Commonwealth domestic commercial vessel national law, as in force from time to time, applies as a law of this State. (2) The Commonwealth domestic commercial vessel national law so applies as if it extended to matters in relation to which this State may make laws— (a) whether or not the Commonwealth may make laws in relation to those matters, and (b) even though the Commonwealth domestic commercial vessel national law provides that it applies only to specified matters with respect to which the Commonwealth may make laws. (3) Subsection (2) does not operate to exclude a law of this State relating to marine safety that would not otherwise be excluded by the Commonwealth domestic commercial vessel national law. (4) The regulations made under this Act may provide that the Commonwealth domestic commercial vessel national law applies under this section as if an amendment to that law— (a) made by a law of the Commonwealth, and (b) specified in the regulations made under this Part, had not taken effect. 9D Interpretation of Commonwealth domestic commercial vessel national law (1) The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this State in relation to the interpretation of the applied provisions, and so applies as if the applied provisions were a Commonwealth Act or were regulations or other legislative instruments under a Commonwealth Act, as the case requires. (2) The Interpretation Act 1987 does not apply to the applied provisions. Division 3 Functions and powers under applied provisions 9E Functions and powers of National Regulator and other authorities and officers The National Regulator and other authorities and officers referred to in the applied provisions have the same functions and powers under the applied provisions as they have under the Commonwealth domestic commercial vessel national law, as that law applies to the Commonwealth. 9F Delegations by the National Regulator Any delegation by the National Regulator under the Commonwealth domestic commercial vessel national law, as that law applies to the Commonwealth, is taken to extend to, and have effect for the purposes of, the corresponding provision of the applied provisions. Division 4 Offences 9G Object of this Division (1) The object of this Division is to further the purpose of this Part by providing for an offence against the applied provisions to be treated as if it were an offence against a law of the Commonwealth. (2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but are not limited to)— (a) the investigation and prosecution of offences, and (b) the arrest, custody, bail, trial and conviction of offenders or persons charged with offences, and (c) proceedings relating to a matter referred to in paragraph (a) or (b), and (d) appeals and reviews relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c), and (e) the sentencing, punishment and release of persons convicted of offences, and (f) fines, penalties and forfeitures, and (g) infringement notices in connection with offences, and (h) liability to make reparation in connection with offences, and (i) proceeds of crime, and (j) spent convictions. (3) For the purposes of this Division, offences include contraventions for which a civil penalty may be imposed. 9H Application of Commonwealth criminal laws to offences against applied provisions (1) The relevant Commonwealth laws apply as laws of this State in relation to an offence against the applied provisions as if those provisions were a law of the Commonwealth and not a law of this State. (2) For the purposes of a law of this State, an offence against the applied provisions— (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were a law of the Commonwealth, and (b) is taken not to be an offence against the laws of this State. (3) Subsection (2) has effect for the purposes of a law of this State except as provided by the regulations made under this Part. 9I Functions and powers conferred on Commonwealth officers and authorities relating to offences (1) A Commonwealth law applying because of section 9H that confers on a Commonwealth officer or authority a function or power in relation to an offence against the Commonwealth domestic commercial vessel national law also confers on the officer or authority the same function or power in relation to an offence against the corresponding provision of the applied provisions. (2) In performing a function or exercising a power conferred by this section, the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding provision of the Commonwealth domestic commercial vessel national law. 9J No double jeopardy for offences against applied provisions If— (a) an act or omission is an offence against both the applied provisions and an offence against the Commonwealth domestic commercial vessel national law, and (b) the offender has been punished for that offence under the Commonwealth domestic commercial vessel national law, the offender is not liable to be punished for the offence under the applied provisions. Division 5 Administrative laws 9K Application of Commonwealth administrative laws to applied provisions (1) The Commonwealth administrative laws apply as laws of this State to any matter arising in relation to the applied provisions as if those provisions were a law of the Commonwealth and not a law of this State. (2) For the purposes of a law of this State, a matter arising in relation to the applied provisions— (a) is taken to be a matter arising in relation to laws of the Commonwealth in the same way as if those provisions were a law of the Commonwealth, and (b) is taken not to be a matter arising in relation to laws of this State. (3) Subsection (2) has effect for the purposes of a law of this State except as provided by the regulations made under this Part. (4) Any provision of a Commonwealth administrative law applying because of this section that purports to confer jurisdiction on a federal court is taken not to have that effect. (5) For the purposes of this section, a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this State) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth. 9L Functions and powers conferred on Commonwealth officers and authorities (1) A Commonwealth administrative law applying because of section 9K that confers on a Commonwealth officer or authority a function or power also confers on the officer or authority the same function or power in relation to a matter arising in relation to the applied provisions. (2) In performing a function or exercising a power conferred by this section, the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power under the Commonwealth administrative law. Division 6 Fees and fines 9M Fees payable to officers or employees of State acting as delegates Regulations may be made under this Act for or with respect to fees payable to this State in relation to anything done under the Commonwealth domestic commercial vessel national law (as that law applies as a law of the Commonwealth), or under the applied provisions, by a delegate of the National Regulator, or an accredited person, who is an officer or employee of this State or an agency of this State. 9N Infringement notice fines (1) Any amount paid to this State by the National Regulator under section 10 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth in relation to an infringement notice is payable into the Waterways Fund established under the Ports and Maritime Administration Act 1995. (2) Any amount payable by this State under section 10 (2) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth is payable out of that Fund. 9O Fines, fees etc not otherwise payable to State (1) All fees, penalties, fines and other money that, under the applied provisions, are authorised or directed to be payable by or imposed on any person (but not including an amount ordered to be refunded to another person) must be paid to the Commonwealth. (2) Subsection (1) does not apply to any fees referred to in section 9M. Division 7 Miscellaneous 9P Things done for multiple purposes The validity of a licence, certificate or other thing issued, given or done for the purposes of the applied provisions is not affected only because it was issued, given or done also for the purposes of the Commonwealth domestic commercial vessel national law. 9Q Reference in Commonwealth law to a provision of another law For the purposes of sections 9H and 9K, a reference in a Commonwealth law to a provision of that or another Commonwealth law is taken to be a reference to that provision as applying because of those sections. 9R Regulations of this State The Governor may make regulations, not inconsistent with this Act or the applied provisions, for or with respect to any matter that by this Part is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Part or the applied provisions. Part 2 Safety of navigation Division 1 General provisions 10 Regulations for prevention of collisions at sea or in other navigable waters (1) The regulations may make provision for or with respect to the prevention of collisions at sea or in other navigable waters (including the use on vessels of lights, shapes and signals). (2) The regulations under this section may adopt, with or without modification, international regulations for preventing collisions at sea. (3) The master or any other person concerned in the operation of a vessel who contravenes the regulations under this section, or who causes those regulations to be contravened, is guilty of an offence. Maximum penalty—50 penalty units. 11 Speed limits, wash limits and other restrictions on operation of vessels in navigable waters (1) The Minister may prohibit or regulate the operation of vessels in navigable waters by a notice published in the Gazette or displayed in or in the vicinity of those waters. (2) The Minister may, by such a notice, impose any restriction considered appropriate for— (a) the safety of the public, or (b) the protection of vessels or other property, or (c) the protection of the environment, or (d) the amenity of other users of the specified waters or occupiers of land adjoining those waters. (2A) In particular, the Minister may impose restrictions on— (a) the speed of vessels, or (b) the creation of wash by vessels, or (c) the creation of noise by vessels, or (d) the mooring or anchoring of vessels, or (e) the use of vessels for particular purposes, or (f) the use of vessels in particular areas (including the exclusion of vessels from particular areas). (3) A notice under this section may apply— (a) to vessels generally or to any class of vessels specified in the notice, and (b) at all times or at such times as may be specified in the notice, and (c) in any other circumstances specified in the notice. (4) A person who operates a vessel to which a notice under this section applies in contravention of the notice is guilty of an offence. Maximum penalty— (a) in the case of a notice restricting the creation of wash by vessels—50 penalty units, or (b) in any other case—10 penalty units. (5) The regulations may exempt vessels from compliance with a notice under this section. (6) The regulations may make provision for or with respect to the admission in evidence and the effect of certificates, in proceedings for offences against this section, of the measurement of the speed or other matter relating to the use of vessels by measuring devices. (7) Nothing in this section affects any regulation that prohibits or regulates the operation of vessels or any power relating to the navigation or other use of vessels conferred on any person or body by the marine legislation or the National law. (8) In any proceedings for an offence against this section, proof of the display of a notice in accordance with this section is not required until evidence is given to the contrary. 12 Restrictions on vessels and people in navigable waters during special events (1) In this section, special event means a major race for vessels or other event that may affect the safety of navigation in any particular waters. (2) The Minister may prohibit or regulate the operation of vessels in specified navigable waters during a special event by notice published in the Gazette. (3) The Minister may, without limiting subsection (2), exclude vessels and people by such a notice from specified areas (the exclusion zone) during the event concerned and impose any other restrictions of a kind that may be imposed under section 11. (4) An authorised officer may direct— (a) a person in an exclusion zone, or (b) a person operating a vessel in an exclusion zone, to move out of the exclusion zone or comply with any restrictions imposed in accordance with section 11. (5) A person who— (a) continues to operate a vessel, or (b) allows a vessel to remain in an exclusion zone, or (c) remains in an exclusion zone, or (d) does not comply with restrictions imposed under section 11, in contravention of a direction by an authorised officer is guilty of an offence. Maximum penalty—10 penalty units. (6) Nothing in this section affects any regulation or notice under section 11 that prohibits or regulates the operation of vessels or any power relating to the navigation or other use of vessels conferred on any person or body by the marine legislation or the National law. (7) In any proceedings for an offence against this section, proof of the publication of a notice in accordance with this section is not required until evidence is given to the contrary. 13 Reckless, dangerous or negligent navigation and other acts (1) A person must not operate a vessel in any navigable waters— (a) negligently, or (b) recklessly, or (c) at a speed or in a manner dangerous to the public. Maximum penalty— (a) if the operation of the vessel occasions death or grievous bodily harm—1,000 penalty units (where the vessel is a foreign vessel or regulated Australian vessel), 100 penalty units (where the vessel is any other commercial vessel other than a hire and drive vessel) or 50 penalty units (where the vessel is a hire and drive vessel or recreational vessel), or imprisonment for 2 years, or both, or (b) if the operation of the vessel does not occasion death or grievous bodily harm—1,000 penalty units (where the vessel is a foreign vessel or regulated Australian vessel), 100 penalty units (where the vessel is any other commercial vessel other than a hire and drive vessel) or 50 penalty units (where the vessel is a hire and drive vessel or recreational vessel), or imprisonment for 9 months (in the case of a first offence) or 12 months (in the case of a second or subsequent offence), or both. (2) A person who is on a vessel in navigable waters, or is being towed by such a vessel, must not do anything that is dangerous to the public. Maximum penalty—50 penalty units. (3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following— (a) the nature and condition of the waters in which the offence is alleged to have been committed, (b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, in those waters, (c) the impact of the alleged offence on others using or near to the waters in which the offence is alleged to have been committed, including nearby swimmers, divers, surfers, fishers and people using any adjacent land. (4) The higher maximum penalty under paragraph (a) of the maximum penalty in subsection (1) does not apply unless it is alleged in the charge for the offence that the conduct concerned occasioned death or grievous bodily harm. (5) In this section— dangerous to the public includes anything that causes or is likely to cause injury to any person or damage to any property. grievous bodily harm includes any permanent or serious disfigurement. hire and drive vessel has the same meaning as in the National law. 13A Operating vessel in a menacing manner (1) Offence—intent to menace A person must not operate a vessel in any navigable waters in a manner that menaces another person with the intention of menacing that other person. Maximum penalty—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence). (2) Offence—possibility of menace A person must not operate a vessel in any navigable waters in a manner that menaces another person if the person ought to have known that the other person might be menaced. Maximum penalty—20 penalty units or imprisonment for 12 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence). (3) Application of section This section applies— (a) whether the other person is menaced by a threat of personal injury or by a threat of damage to property, and (b) whether or not that person or that property is in or on any navigable waters. (4) Defence A person is not guilty of an offence against this section if the person could not, in the circumstances, reasonably avoid menacing the other person. (5) Double jeopardy A person is not liable to be convicted of— (a) both an offence against subsection (1) and an offence against subsection (2), or (b) both an offence against this section and an offence against section 13, arising out of a single incident. 14 Unreasonable interference by operation or use of vessel A person must not— (a) operate a vessel in any navigable waters, or (b) make any other use of a vessel in any navigable waters, in a manner that interferes unreasonably with the lawful use of those waters (or adjoining land) by other persons. Maximum penalty—50 penalty units. 15 Protection of navigation aids A person must not, without reasonable excuse, remove, damage, interfere with or obstruct the use of any navigation aid. Maximum penalty—50 penalty units. 15A Power to give directions relating to safety on navigable waters (1) An authorised officer may give a direction to a person in, on or near navigable waters if the officer believes on reasonable grounds that— (a) the giving of the direction is necessary to— (i) prevent the operation or other use of a vessel in contravention of section 14, or (ii) ensure the safety of any person, or to prevent damage to property, in, on or near navigable waters, and (b) the direction is reasonable in the circumstances for achieving that objective. (1A) Any such direction under subsection (1) may, without limitation, include the following— (a) a direction to the owner, master or operator of a vessel to cease operating a vessel, (b) a direction to the owner, master or operator of a vessel to remove the vessel from the water, (c) a direction to the owner, master or operator of a vessel to moor the vessel in a certain location. (2) A person must not fail to comply with a direction given under this section to the person, whether or not the person may contravene another provision of the marine legislation by obeying the direction. Maximum penalty—30 penalty units. (3) A person is not guilty of an offence against subsection (2) unless the authorised officer— (a) warned the person at the time of giving the direction that failure to comply with the direction may constitute an offence, and (b) identified himself or herself as an authorised officer. (4) It is a defence to the prosecution of a person for an offence against a provision of the marine legislation if, at the time of the offence, the person was obeying a direction given under this section. (5) Despite any other provision of this section, a direction given under this section has no effect to the extent to which it is inconsistent with a direction given by a harbour master under Part 7. (6) In this section— (a) a reference to a person in, on or near navigable waters includes a reference to a person on a vessel, water skis or other apparatus, in, on or near navigable waters, and (b) a reference to property in, on or near navigable waters includes a reference to property on a vessel. 16 Removal of obstructions in navigable waters (1) In this section, obstruction to navigation means anything in, over or on navigable waters (including a vessel, whether wrecked or not) that— (a) is a danger to the safe navigation of vessels, or (b) is moored, berthed or placed in contravention of the marine legislation or the National law, but not including anything lawfully erected in, over or on navigable waters. (2) The Minister may direct the owner of or person responsible for an obstruction to navigation to remove the obstruction within such time as is specified in the notice. Any such owner or person who fails, without reasonable excuse, to comply with the direction is guilty of an offence. Maximum penalty— (a) if the obstruction is a foreign vessel or regulated Australian vessel that has sunk, is unseaworthy or is likely to cause danger to the public or shipping or property damage—100 penalty units, or (b) in any other case—50 penalty units. (3) The Minister may remove, or authorise the removal of, any obstruction to navigation in such manner as the Minister thinks fit (whether or not the Minister has issued a direction for its removal under this section). The obstruction may be removed by its destruction if it is reasonable to do so in the circumstances. (4) The Minister may, subject to and in accordance with the regulations, dispose of anything removed under this section. (5) The Minister may recover as a debt in a court of competent jurisdiction the reasonable costs and expenses incurred by the Minister in the exercise of his or her powers under this section from the owner of or person responsible for the obstruction to navigation. 17 Minister's approval required for aquaculture leases over navigable waters (1) The Minister administering the Fisheries Management Act 1994 may not grant or renew an aquaculture lease over navigable waters under Part 6 of that Act without the approval of the Minister administering this Act. (2) The grounds on which the Minister may refuse to give that approval are that— (a) it is in the public interest that the area concerned remain available for the navigation of vessels rather than be used for aquaculture, or (b) sufficient provision has not been made to ensure that structures on the leased area are not, and will not become, a danger to the safe navigation of vessels. (3) This section does not apply to— (a) the renewal of a lease to which the lessee is entitled under the Fisheries Management Act 1994, or (b) the grant or renewal of a lease of a class excluded from this section by notice given to the Minister administering that Act by the Minister administering this Act. 18 Regulation of organised aquatic activities in navigable waters (1) In this section— aquatic activity means— (a) a race, competition or exhibition (whether or not involving vessels or equipment) that is conducted in or on any navigable waters, or (b) any other activity (whether or not involving vessels or equipment) that is conducted in or on any navigable waters and that restricts the availability of those waters for normal use by the public. conduct an aquatic activity includes promote or organise the activity. (2) The regulations may prohibit or regulate the conduct of aquatic activities. (3) Any such regulation may prohibit the conduct of aquatic activities without a licence or other approval from the Minister. (4) A licence or other approval issued by the Minister for the purposes of this section may include an exemption from a requirement of this Act or the regulations in respect of any or all of the following— (a) the holder of the licence or approval, (b) any person or class of persons involved in the conduct of, or taking part in, the aquatic activity to which the licence or approval relates, (c) any vessel used in connection with that activity. 19 Regulations relating to safety of navigation (1) The regulations may make provision for or with respect to the safety of navigation. (2) In particular, the regulations may make provision for or with respect to— (a) the operation of vessels in navigable waters, and (b) vessels or objects that have been abandoned in navigable waters, and (c) the activities of persons that affect navigation (including persons carried on vessels, surfboard riders, divers or other persons in or on navigable waters), and (d) navigation aids, and (e) cables, wires, pipes or other material crossing over or under any navigable waters, and their supporting structures, and (f) the safety of port operations relating to vessels, passengers and cargo. (3) The regulations may provide that a person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made in respect of the person under this Part or the regulations under this Part in relation to matters requiring a licence or other approval of the Minister. Note. Part 6A of the Ports and Maritime Administration Act 1995 deals with the management of wharves, moorings, port facilities and works. Division 2 Seizure, impoundment or forfeiture of recreational vessels 19A Seizure of vessels (1) An authorised officer may do any one or more of the things set out in this section if the authorised officer reasonably believes that— (a) a recreational vessel has been operated in a way so as to commit an offence under section 13A, or (b) a person has committed an offence involving the death of, or grievous bodily harm to, another person caused by the operation of a vessel, being an offence that comprises the crime of murder or manslaughter or an offence against the Crimes Act 1900, or (c) a person has committed an offence under section 13 (1) (b) or (c) and a court attendance notice has been issued in relation to the offence. (2) The authorised officer may— (a) use reasonable force to seize and take charge of the recreational vessel and cause it to be moved to a place determined by the Commissioner of Police or Transport for NSW and immediately, or as soon as practicable afterwards, give or send the owner of the vessel a receipt relating to the seizure of the vessel, or (b) give the owner of the vessel a notice (a recreational vessel production notice) requiring the owner to move or cause the recreational vessel to be moved to, or to produce the vessel or cause it to be produced to an authorised officer at, a place specified in the notice no later than on the date and time specified in the notice and on production of the vessel, or as soon as practicable afterwards, give or send the owner of the vessel a receipt relating to the production of the vessel. 19B Production notices (1) The date specified in a recreational vessel production notice for production of a recreational vessel must be a date that is no later than the first working day occurring 5 days after the notice is given. (2) A production notice may be given personally or by post and must state the ground on which it is being given. (3) A production notice given by post is taken to have been given on the day that is 7 days after it is posted. (4) The disposal of a vessel within the period of 5 days after a production notice is given in relation to the vessel does not affect the requirement to produce the vessel in accordance with the notice, except as provided by subsection (5). (5) A production notice ceases to have effect in relation to a vessel if it is withdrawn by the Commissioner of Police or Transport for NSW by notice in writing given to— (a) the vessel owner concerned, or (b) a person who purchased the vessel after the production notice was given who satisfies the Commissioner of Police or Transport for NSW, as the case requires, that the purchase was made in good faith for value and without notice, at the time of the purchase, of the production notice. 19C Powers and duties relating to seizure of recreational vessels (1) A recreational vessel may be seized under section 19A (2) (a)— (a) in State waters, or (b) on a road or public place, or (c) in any other place, with the consent of the owner or occupier of the place or by a police officer under the authority of a search warrant issued under section 19P. (2) For the purpose of exercising the powers conferred by section 19A, an authorised officer may cause any locking device or other feature of the vessel that is impeding the seizure and movement of the vessel to be removed, dismantled or neutralised and may, if the owner or any other person will not surrender the keys to the vessel, start the vessel by other means. (3) A vessel may be moved under section 19A— (a) by being operated, whether or not under power, or by being towed or pushed, or in any other manner, and (b) by one or more authorised officers or, at the direction of an authorised officer, by persons engaged by the Commissioner of Police or Transport for NSW. (4) If a vessel is moved in accordance with this section by a tow truck, the person operating or driving the tow truck may take such action as is reasonable or necessary to facilitate the towing or movement of the vessel in a manner that does the least damage to the vessel. In taking any such action, the person is not liable for any damage to the vessel that the person causes. 19D Removal, impounding and production of vessel (1) Any recreational vessel moved to, or produced at, a place in accordance with section 19A may, subject to the regulations, be impounded by the Commissioner of Police or Transport for NSW at that place or may be moved to and impounded at any other place determined by the Commissioner or Transport for NSW. (2) A certificate in writing given by an authorised officer as to the fact and cost of any such movement is evidence of those matters. 19E Failure to comply with production notice (1) The owner of a recreational vessel is guilty of an offence if— (a) the owner is given a recreational vessel production notice in relation to the vessel, and (b) without reasonable excuse, the owner fails to move the vessel to or produce it at, or cause it to be moved to or produced at, the place, on the date and within the time period, specified in the notice. Maximum penalty—30 penalty units. (2) The responsible licensing official may suspend the registration of a vessel for a period not exceeding 3 months if the owner of the vessel— (a) is found guilty of an offence against this section, or (b) pays the whole or part of the amount specified in a penalty notice issued in respect of an offence against this section, or in any process subsequent to such a penalty notice, as the amount that is payable in order to dispose of the alleged offence without having it dealt with by a court, or (c) has not paid the amount so specified, has not elected to have the matter dealt with by a court and the time for electing to have the matter so dealt with has elapsed. (3) Any suspension under subsection (2) is in addition to any penalty imposed by a court or prescribed by the regulations for the offence. (4) If the owner of a recreational vessel is issued with a second recreational vessel production notice after failing to comply with subsection (1) and the owner fails to comply with subsection (1) in relation to the second production notice, the vessel is forfeited to the Crown unless already forfeited under section 19F or the court otherwise directs under section 19G. 19F Forfeiture of vessel (1) A vessel that is used in connection with an offence specified in section 19A (1) that is a second or subsequent offence under that section within a 5-year period is, by the finding of guilt by the court, forfeited to the Crown unless already forfeited under section 19E or the court otherwise directs under section 19G. (2) Any forfeiture under this section is in addition to any other penalty that may be imposed for the offence concerned, but for the purposes of any rights of appeal against a penalty so imposed by the court finding the offence to be proven, the forfeiture is taken to be, or to be part of, that penalty. 19G Commutation of forfeiture (1) The court that finds a person guilty of an offence referred to in section 19E (4) or 19F (1) may, at the time of making that finding, by order direct that the forfeiture that would otherwise be imposed under the relevant provision by that finding be commuted to a period of impounding specified in the order, if the court is satisfied that the forfeiture of the vessel will cause extreme hardship to the owner of the vessel or any other person. (2) The period for which a vessel was impounded under section 19D is to be reckoned as counting towards a period of impounding imposed under this section. (3) A vessel impounded by an order of a court under this section is to be retained by the Commissioner of Police or Transport for NSW for the time required by the order, unless it is sooner released under this Division. 19H Interested persons to be notified (1) The owner of a vessel is to give the holder of any registered interest in the vessel notice of the imposition of any sanction in relation to the vessel operated in connection with the offence concerned under section 19A. (2) The Commissioner of Police is to notify Transport for NSW of any offence under this Division. (3) Transport for NSW is to notify the owner of a vessel of the imposition of any action taken in relation to the vessel operated in connection with any offence under this Division. (4) In this section, registered interest, in relation to a vessel, means a security interest in the vessel with respect to which a financing statement (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) has been registered under that Act. 19I Retention of vessel impounded under this Division The Commissioner of Police or Transport for NSW is to retain a vessel impounded under section 19D for the period of 3 months after its impoundment, unless it is sooner released under this Division or in accordance with the regulations. 19J Early release of vessel on application to Local Court (1) A person may apply to the Local Court for an order for the release into the person's custody of a vessel impounded under this Division before the end of the period of impounding imposed on the vessel. (2) An order cannot provide for release on a day that is less than 5 working days after the vessel was impounded. (3) In determining whether to make an order under this section, the Local Court is entitled to have regard to the following— (a) the safety of the public and the public interest in preventing the use of a vessel that the Court considers is reasonably likely in all the circumstances to be used for further offences specified in section 19A (1), (b) any alleged extreme hardship to a person other than the owner of the vessel arising from the impoundment of the vessel. (4) The vessel is to be released by order of the Local Court only after the applicant has paid in full any applicable movement, towing and storage fees under section 19K. (5) An applicant into whose custody a vessel is released by an order under this section must acknowledge in writing receipt of the vessel from the custody of the Commissioner of Police or Transport for NSW. 19K Release of impounded vessel (1) The regulations may prescribe the fees (if any) payable in respect of the movement, towage and storage of an impounded vessel and the persons responsible for payment of those fees. (2) It is the duty of the Commissioner of Police or Transport for NSW to endeavour to cause any impounded vessel to be available for collection by the owner of the vessel as soon as the person is entitled to it. (3) However, the Commissioner of Police or Transport for NSW is not required to release any vessel under this section unless all movement, towing and storage fees payable under this section in respect of the impounded vessel have been paid in full. (4) An applicant to whom a vessel is released under this section must in writing acknowledge receipt of the vessel from the custody of the Commissioner of Police or Transport for NSW. (5) The Commissioner of Police or Transport for NSW may waive the whole or any part of the prescribed fees for movement, towage and storage of a vessel. 19L Safe keeping of vessels The Commissioner of Police or Transport for NSW has (in their official capacity) a duty to take all reasonable steps to secure an impounded vessel against theft or damage while impounded. 19M Disposal of vessels (1) The Commissioner of Police or Transport for NSW may cause an impounded or forfeited vessel to be offered for sale in the circumstances prescribed by the regulations. The sale is to be by public auction or public tender. (2) The vessel may be disposed of otherwise than by sale if the Commissioner of Police or Transport for NSW believes it is appropriate in the circumstances to dispose of the vessel otherwise than by sale. (3) If the vessel offered for sale is not sold, the Commissioner of Police or Transport for NSW may dispose of the vessel otherwise than by sale. (4) The regulations may make provision for or with respect to the disposal of the proceeds of any such sale, including provisions for or with respect to entitling persons to seek to be paid any such proceeds. (5) The Commissioner of Police or Transport for NSW may dispose of a vessel that is the subject of forfeiture under section 19F by releasing it to Transport for NSW to be used for the purposes of crash testing and any educational program for operators of vessels established by Transport for NSW. (6) Transport for NSW may cause any vessel released to it to be used for the purposes of crash testing and any educational program for operators of vessels established by Transport for NSW. 19N Protection from liability with respect to impounding and other matters No action lies against the Crown, the Minister, the Commissioner of Police, Transport for NSW or any authorised officer for— (a) any damage to, or theft of, a vessel caused by, or arising from, impounding or crash testing a vessel in accordance with this Division, or (b) failure by any person to give the holder of a registered interest notice as required by section 19H. 19O Failure to prosecute (1) No action lies against the Crown, the Minister, the Commissioner of Police, Transport for NSW or any authorised officer in respect of the seizure or impounding of a vessel under this Division for an alleged offence for which no proceedings or process are taken or issued. (2) This section does not protect an authorised officer from liability in respect of the seizure, otherwise than in good faith, of a vessel. 19P Search warrants (1) A police officer may apply to an authorised warrants officer for a search warrant if the police officer has reasonable grounds for believing that there is or, within 72 hours, will be on any premises a vessel that has been operated as referred to in section 19A. (2) An authorised warrants officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a police officer named in the warrant— (a) to enter the premises, and (b) to search the premises for such a vessel, and (c) to seize such a vessel, and otherwise deal with it, in accordance with this Division. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) In this section— authorised warrants officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002. premises has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. 19Q Appeal against decisions (1) A person may appeal to the Local Court against the decision of a responsible licensing official made in relation to the person under section 19E (2). (2) Notice of an appeal is to be lodged with the Local Court within 28 days after the date on which the person was notified of the relevant decision. (3) Subject to the rules of court of the Local Court, the notice of appeal must specify the grounds of appeal. (4) An appeal does not operate to stay the effect of the official's decision unless the Local Court otherwise orders. (5) If the effect of a decision is stayed under this section, it is stayed only for so long as any conditions imposed by the Local Court when ordering the stay are complied with. 19R Procedure on notice of appeal (1) The relevant registrar of the Local Court must give notice of the time and place of the hearing of an appeal to the responsible licensing official and to the appellant. (2) A notice given under subsection (1) is to inform the person to whom it is given of the grounds of the appeal. (3) The hearing of an appeal may proceed regardless of any omission from or error in a notice given under this section or the failure to give the notice if the Local Court is satisfied that the appellant and the responsible licensing official knew of the time and place of the hearing and were not prejudiced by the omission, error or failure to give notice. 19S Procedure on appeal (1) An appeal under section 19Q is to be heard before the Local Court. (2) The Local Court is to hear and determine the appeal and may confirm (with or without variation) the decision appealed against, set aside the decision, dismiss the appeal or make any other order as seems just to the Court in the circumstances. (3) In varying a decision in an appeal under this Division, the Local Court may exercise only such powers as the responsible licensing official could have exercised under this Act when making that decision. (4) If the decision that is appealed against was based on an offence committed (or alleged to have been committed) by the appellant under this Act or any other law, the appeal against the decision does not permit review of— (a) the guilt or innocence of the appellant for the offence, or (b) the imposition of a penalty or the level of a penalty imposed on the appellant for the offence. (5) The Local Court is not bound to observe the rules of law governing the admission of evidence but may inform itself of any matter in such manner as it sees fit. (6) The civil standard of proof applies in proceedings on an appeal. (7) Subject to the regulations, any material considered by the responsible licensing official in reaching the decision the subject of the appeal and copies of any notices, documents or letters served on the appellant by the responsible licensing official together with details of their service are admissible in the proceedings. (8) The authenticity of any such material, notices, documents, letters and service must be certified by an authorised officer. (9) The decision of the Local Court given in any appeal under this Division is final and is taken to be the decision of the responsible licensing official and to be carried into effect accordingly. 19T Regulations may make provision for appeals and original applications The regulations may make provision for or with respect to the following— (a) the matters that the Local Court may or must take into account (or not take into account) when determining an appeal under this Division, (b) the manner of notification of specified decisions by a responsible licensing official or any other person to persons affected by the decisions, (c) the notification of appeal rights concerning specified decisions to persons affected by the decision, (d) the giving of reasons for specified decisions, (e) the grounds on which the Local Court may (or may not) allow an appeal against specified decisions, (f) the adjournment of appeals under this Division, (g) the internal review of specified decisions as a precondition to appeals against such decisions under this Division, (h) the actions that may be taken by the Local Court, or must be taken by a responsible licensing official or any other person, after the determination of an appeal under this Division, (i) the circumstances in which specified decisions are or are not stayed (or may or may not be stayed) by the Local Court pending the determination of an appeal under this Division, (j) the admission of specified certified documents in evidence in an appeal under this Division as prima facie evidence of the matters stated in the document. 19U References to vessels include trailers In this Division, a reference to a vessel includes a reference to any trailer used to carry the vessel. Part 3 Boating safety—alcohol and other drug use Division 1 Interpretation 20 Definitions (1) In this Part and in Schedule 1— breath analysing instrument has the same meaning as in the Road Transport Act 2013. breath test has the same meaning as in the Road Transport Act 2013. drug has the same meaning as it has in the Road Transport Act 2013. juvenile means a person who is not more than 16 years of age. major offence means— (a) the crime of murder or manslaughter or an offence against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, being a crime or offence by which the death of or bodily harm to another person was caused by or arose out of the operation of a vessel, or (b) an offence against this Part. operate a vessel includes— (a) being towed by a vessel, whether on a water ski, aquaplane, paraflying device or other device, or (b) act as observer on a vessel, for safety purposes, of any person being towed by the vessel, or (c) supervise a juvenile operator of a motor vessel. (2) A reference in this Part to a major offence includes a reference to any such offence committed before the commencement of this Part. Note. A reference to a major offence includes an offence against Part 2 of the Marine (Boating Safety—Alcohol and Drugs) Act 1991 committed before the repeal of that Act by this Act (see clause 3 of Schedule 4). (3) An offence against a provision of this Part or Schedule 1 is a second or subsequent offence only if, within the period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence. (4) An offence against a provision of this Part or Schedule 1 is a first offence if it is not a second or subsequent offence. 21 Application of Part and Schedule 1 (1) This Part and Schedule 1 apply to all vessels. However, this Part and Schedule 1 do not apply to a surfboard or similar device used by a swimmer or surfer to support the swimmer or surfer in the water (other than a sailboard or a device being towed by a vessel). (2) This Part and Schedule 1 apply to a vessel only while the vessel is underway. (3) This Part and Schedule 1 apply to all waters, whether or not they are navigable waters. 22 Prescribed concentrations of alcohol In this Part and in Schedule 1— (a) novice range prescribed concentration of alcohol means a concentration of more than zero grammes, but less than 0.02 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and (b) special range prescribed concentration of alcohol means a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and (c) low range prescribed concentration of alcohol means a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and (d) middle range prescribed concentration of alcohol means a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and (e) high range prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. 23 Measurement of alcohol concentrations (1) For the purposes of this Part and Schedule 1, the concentration of alcohol present in a person's breath or blood may be expressed as follows— (a) in the case of a sample of breath that is measured by a breath analysing instrum