Queensland: Transport Operations (Marine Safety) Act 1994 (Qld)

Transport Operations (Marine Safety) Act 1994 An Act about marine safety and other matters Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Transport Operations (Marine Safety) Act 1994. 2 [Repealed] Division 2 Objectives of Act 3 Objectives of this Act (1) The overall primary objective of this Act is, consistent with the objectives of the Transport Planning and Coordination Act 1994, to provide a system that achieves an appropriate balance between— (a) regulating the maritime industry to ensure marine safety; and (b) enabling the effectiveness and efficiency of the Queensland maritime industry to be further developed. (2) In particular, the objectives of this Act are— (a) to allow the Government to have a strategic overview of marine safety and related marine operational issues; and (b) to establish a system under which— (i) marine safety and related marine operational issues can be effectively planned and efficiently managed; and (ii) influence can be exercised over marine safety and related marine operational issues in a way that contributes to overall transport efficiency; and (iii) account is taken of the need to provide adequate levels of safety with an appropriate balance between safety and cost. (3) These objectives are to be achieved for Queensland regulated ships mainly by— (a) imposing general safety obligations to ensure seaworthiness and other aspects of marine safety; and (b) allowing a general safety obligation to be discharged by complying with relevant standards or in other appropriate ways chosen by the person on whom the obligation is imposed. (4) In particular, a Queensland regulated ship may be taken to sufficiently comply with a general safety obligation even though a competent person has not issued a survey report for the ship. (5) A further objective of this Act is to manage the operation and activities of ships. (6) The objectives of the Act, and how they are achieved, are further explained in part 3. Division 3 Interpretation and basic concepts 4 Dictionary The dictionary in schedule 1 defines particular words used in this Act. 5 [Repealed] 6 Meaning of ship connected with Queensland A ship is connected with Queensland if— (a) it is registered under the Shipping Registration Act 1981 (Cwlth) with a home port in Queensland; or (b) it is, or is required to be, registered or licensed under this or another Act; or (c) it is owned or chartered by— (i) an individual whose place of residence, or principal place of residence, is in Queensland; or (ii) a person whose place of business, or principal place of business, is in Queensland; or (iii) a person whose principal place of business for managing the ship's operations is in Queensland; or (d) it is a ship declared by regulation to be a ship connected with Queensland. 7 Meaning of master (1) The master of a ship is the person having command or charge of the ship. (2) A pilot having the conduct of a ship, but not belonging to the ship, is not the master of the ship. 8 Meaning of operates a ship An owner of a ship operates the ship if the owner operates the ship or causes or allows it to be operated by someone else. 9 Meaning of owner (1) The owner of a ship is the person who owns the ship, whether or not— (a) the person is registered as the ship's owner under this Act or a law of another jurisdiction; or (b) for a ship that is a domestic commercial vessel—the person holds a certificate of operation for the ship under the national law. (2) The owner of a ship includes a person who— (a) exercises, or purports to exercise, powers of the owner; and (b) operates the ship or causes or allows it to be operated by someone else. Example 1— If a ship's owner lives outside Queensland, and the owner appoints an agent in Queensland to exercise the owner's powers and operate the ship, the agent is an owner of the ship. Example 2— If, under a charter, a person has exclusive possession of a ship and may operate the ship, the person is an owner of the ship. Example 3— If a bank becomes the mortgagee in possession of a ship and operates it, the bank is an owner of the ship. 10 Meaning of ship (1) A ship is any kind of boat or other vessel used, or intended to be used, in navigation by water or for any other purpose on water. (2) Without limiting subsection (1), a ship includes a boat or other vessel— (a) whatever its size; and (b) however it is propelled or moved; and (c) whether it is on land or in water. (3) A ship includes, for example— (a) a barge, lighter or other floating vessel; and (b) a hovercraft or other surface effect craft. (4) A ship does not include a vessel declared by regulation not to be a ship. (5) A regulation may provide that a ship includes an aircraft when it is on water or is taking off, or landing on, water. (6) Except as provided by a regulation under subsection (5), a ship does not include an aircraft. (7) A reference to a ship includes the ship's equipment. 10A Meaning of Queensland regulated ship A Queensland regulated ship is— (a) a recreational ship; or (b) an other Queensland regulated ship. 10B Meaning of recreational ship (1) A recreational ship is— (a) a ship used only for private recreation; or (b) a tender to a ship mentioned in paragraph (a). (2) A regulation may prescribe circumstances in which a ship may be taken to be used only for private recreation. 10C Meaning of other Queensland regulated ship An other Queensland regulated ship is— (a) a ship that is not a recreational ship or domestic commercial vessel; or (b) a tender to a ship to which paragraph (a) applies. Division 4 Application of Act 11 General application of Act to ships (1) This Act applies to the following ships— (a) all ships connected with Queensland, wherever they may be, including while they are outside Queensland waters; (b) all ships in a pilotage area or port; (c) all ships on Queensland intrastate voyages, including while they are outside Queensland waters; (d) all ships on interstate voyages while they are in Queensland waters; (e) all ships on overseas voyages while they are in Queensland waters. (2) Subsection (1) is subject to this division. (3) For the purposes of this section, a ship is taken to be on a voyage from when it gets under way for the voyage until it gets under way for another voyage. 12 Relationship with Commonwealth Navigation Act generally (1) This Act does not apply to a ship to the extent that the Commonwealth Navigation Act applies to the ship. (2) However, if the Commonwealth Navigation Act provides that it does not apply to a matter if a State Act deals with the matter and this Act makes provision for the matter, this Act applies to the ship to the extent of the provision made for the matter. 13 Aids to navigation—relationship with Commonwealth Acts This Act does not apply to an aid to navigation to the extent to which the Commonwealth Navigation Act or another Commonwealth Act applies to the aid to navigation. 14 Relationship with the national law (1) The national law applies to particular activities of, and matters relating to, domestic commercial vessels. (2) This Act does not apply to a domestic commercial vessel to the extent the national law applies to the vessel. Note— See the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cwlth), section 6(2) for circumstances in which a law of the State may apply in relation to domestic commercial vessels. (3) Generally, this Act expressly identifies a provision that does not apply to a domestic commercial vessel by stating the provision applies only to a Queensland regulated ship (which does not include a domestic commercial vessel). (4) However, the absence of a statement of a kind mentioned in subsection (3) does not limit the operation of subsection (2). 15Section 11 subject to certain provisions (1) The provisions of this Act to which section 11 is subject include the following provisions— • section 54 (that deals with the application of part 5, division 1) • section 59A (that deals with the application of part 5, division 2) • section 61A (that deals with the application of part 5, division 3) • section 98 (that deals with the application of part 8) • section 187 (that deals with the application of part 14, division 2). (2) Section 11 is also subject to a regulation that expressly excludes the application of this section, in whole or in part. 16 Defence ships (1) This Act does not apply to a ship belonging to— (a) the Australian Defence Force; or (b) the naval, military or air forces of a foreign country. (2) However, if the master of a ship mentioned in subsection (1) voluntarily uses the services of a pilot, the master and owner of the ship are liable for pilotage fees under this Act. Division 5 Operation of Act 17 Act binds all persons This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth, the other States and the Territories. 18 Exemption of person or ship from Act (1) A regulation may exempt a person or ship from this Act or any of its provisions. (2) The exemption may be given on specified conditions. (3) If an exemption is given on conditions, the exemption operates only if the conditions are complied with. 18A Exempting of person or ship from regulatory provision (1) The general manager may exempt a person or ship from a provision of a regulation or a speed limit fixed under section 206A or 206AA (a regulatory provision). (2) The general manager must consider all relevant matters in deciding whether or not to give an exemption, including, for example, the following— (a) whether the regulatory provision has been substantially complied with; (b) whether compliance with the regulatory provision is unnecessary in the particular circumstances; (c) whether the action taken or proposed to be taken for the matter that is the subject of the exemption is as effective as, or more effective than, compliance with the regulatory provision. (3) However, the general manager may give an exemption only if the general manager is satisfied giving it will not adversely affect marine safety or the effectiveness and efficiency of the Queensland maritime industry. (4) If an exemption is given on conditions, the exemption operates only if the conditions are complied with. (5) The general manager must, as soon as is practicable after giving an exemption, give notice of it in the gazette. (6) The notice must state the following— (a) the person or ship the exemption is given for; (b) the regulatory provision from which the exemption is given; (c) any conditions on which the exemption is given; (d) any other details the general manager considers relevant. (7) The Statutory Instruments Act 1992, sections 24 to 26 apply to an exemption as if it were a regulation. (8) A regulation may regulate the giving of an exemption. (9) Also, if a provision of a regulation is repealed, a regulation may declare that— (a) an exemption in force for the repealed provision, immediately before its repeal, is taken to be given for a provision of a regulation corresponding to the repealed provision; and (b) for the purpose of a declaration under paragraph (a), a reference in the exemption to the repealed provision is taken to be a reference to the corresponding provision. Part 2 [Repealed] Division 1 [Repealed] 19 [Repealed] 20 [Repealed] 21 [Repealed] Division 2 [Repealed] 22 [Repealed] 23 [Repealed] 24 [Repealed] Division 3 [Repealed] 25 [Repealed] 26 [Repealed] 27 [Repealed] Part 3 How to understand this Act 28 To which ships does this Act apply (1) The power to legislate for ships is shared between the Commonwealth and the States and Territories. (2) As a general rule, this Act does not apply to a ship to the extent to which the Commonwealth Navigation Act or the national law applies to the ship. Note— See sections 12(1) and 14. (3) The application of the Commonwealth Navigation Act or the national law to ships varies throughout the Act depending on the subject matter of the provisions concerned. (4) Section 11(1) provides a general statement of the ships to which this Act applies. Note— In general terms, these are ships with a sufficient ownership, operational or registration connection with Queensland, ships in Queensland pilotage areas, ports and waters and ships on Queensland intrastate voyages. (5) This general statement is, however, subject to the application of the Commonwealth Navigation Act, the national law and certain provisions of the Act and regulations. (6) Section 15 specifies the main exceptions to the general statement. Note— See also section 16. 29 Achieving an appropriate balance between safety and cost (1) This Act is primarily about marine safety. (2) Even though it is possible to regulate to achieve the highest level of safety, this would ignore the impact of the regulation on the effectiveness and efficiency on the Queensland maritime industry. (3) Therefore, this Act establishes a system to achieve an appropriate balance between safety and cost. 30 What is the system established (1) Part 4, division 1 imposes general safety obligations for Queensland regulated ships on the following people in the maritime industry— (a) a competent person who issues a survey report for a ship; (b) a ship's owner (including an operator); (c) a ship's master and crew. (2) Part 4, division 2 imposes general safety obligations for all ships on the following people in the maritime industry— (a) a ship's pilot; (b) the managing pilotage entity for a ship in a compulsory pilotage area. (3) These general safety obligations are generally intended to be performance based rather than prescriptive and to allow people to find more cost efficient ways of achieving safety. 31 What is a standard (1) Standards will help people to understand the general safety obligations for Queensland regulated ships in part 4, division 1. (2) Standards may deal with most matters about marine safety and issues affecting marine safety that may be dealt with by regulation, including, for example, the crewing and operation of Queensland regulated ships. (3) However, a standard may not prescribe offences, fees or charges. (4) Standards are made by the general manager and approved by the Governor in Council. (5) The general manager must go through a consultation process before a standard can be approved. (6) This consultation process allows people in the maritime industry to comment on a standard and make suggestions for changes, including changes that may result in a more effective and efficient maritime industry. 32 What happens if a person does not comply with a relevant standard (1) If a person does not comply with a relevant standard, this may establish noncompliance with a general safety obligation under section 40 or 41. (2) However, the court may be satisfied that the ship was safe even though the standard was not complied with. Example— If a ship owner or master operates a recreational ship that does not comply with a standard about the equipment the ship should be equipped with to achieve safety, the noncompliance with the standard may mean section 41 has been contravened. However, the ship owner may satisfy the court the ship was safe, despite noncompliance with the standard. Note— See section 42 for a fuller statement. 33 Role of survey reports in satisfying general safety obligations A survey report issued by a competent person for a Queensland regulated ship may be used to establish that a general safety obligation under section 40 or 41 has been complied with in whole or part. Note— See section 42(3)(a). 34 What mechanisms ensure safety There are various mechanisms in the Act to ensure safety, including, for example, the following— (a) certain key groups of people need to be licensed under the Act and will be regulated under the licensing system; (b) owners and masters of Queensland regulated ships are responsible for ensuring the ships are safe; (c) owners, masters, crew members and other persons involved with the operation of Queensland regulated ships are responsible for ensuring the ships are operated safely; (d) pilots who have the conduct of ships are responsible for ensuring the ships are operated safely; (e) Queensland regulated ships must have the required safety equipment; (f) some Queensland regulated ships need to be registered under this Act; (g) shipping inspectors are to be appointed and have the power to monitor ships to see if they are safe and are operated safely; (h) the general manager may require a shipping inspector to investigate a marine incident, or suspected marine incident, involving a Queensland regulated ship; (i) the chief executive or general manager may suspend or cancel an approval; (j) the maximum penalties are substantial if a person is found guilty of contravening the Act. Note— If a provision of this Act provides that the maximum penalty for an offence may be a fine or imprisonment, the court may impose both (Penalties and Sentences Act 1992, section 180A). If a body corporate is convicted of an offence against this Act, the court may impose a fine of 5 times the maximum fine that could be imposed on an individual (Penalties and Sentences Act 1992, section 181B). Thus, for example, the maximum fine that could be imposed on summary conviction on a body corporate ship owner for an offence against section 41 is 2,500 penalty units. If the contravention causes death or grievous bodily harm, the maximum fine on conviction on indictment is 25,000 penalty units. 35 How is safety in Queensland waters achieved (1) Some Queensland waters need to be controlled to ensure safety. (2) The Act, therefore, allows areas of Queensland waters to be declared as pilotage areas. (2A) The Act also allows a pilotage area, or part of a pilotage area, to be declared as a compulsory pilotage area. (3) Control in pilotage areas is achieved by requiring certain ships to use a pilot when the ship is entering, leaving or navigating within a compulsory pilotage area. (4) Control is also achieved by appointing harbour masters and authorising them to give directions about ships and their navigation. (5) Part 7 sets out the powers of harbour masters. 36 How are harbour masters and shipping inspectors accountable (1) In exercising a power, harbour masters are accountable to the general manager under the Public Sector Act 2022 and must comply with part 7. (2) In exercising a power, shipping inspectors are accountable to the general manager under the Public Sector Act 2022 and must comply with part 13. (3) Harbour masters and shipping inspectors are also subject to controls under other laws, including, for example, the Judicial Review Act 1991. 37 How is the chief executive accountable The chief executive must report annually to Parliament through the Minister on the Act's operation. 38 Does the Act mention everything that will appear in the regulations and standards The Act allows for matters to be provided by regulation or standard even though express reference may not be made to the matters in the Act. Example— Reference is made in the Act to the registration of a Queensland regulated ship, the amendment, renewal, or transfer of the registration of the ship or the exemption of the ship from registration. However, details about these matters are to be found in regulations or standards and not the Act. 39 Operation of part This part does not limit, but may extend, the meaning of— (a) a provision of another part of this Act; or (b) a provision of a regulation or standard. Example— If a regulation provides for a matter and this part mentions the matter, this part cannot be used to limit, but may extend, the regulation making power or the regulation. Part 4 General safety obligations Division 1 General safety obligations for Queensland regulated ships 39A Application of div 1 This division applies only to Queensland regulated ships. Note— See the national law, part 3 for general safety duties relating to domestic commercial vessels. 40 General safety obligation of competent persons about condition of ships (1) A competent person who issues a survey report for a ship must ensure that each statement made in the report about the ship's seaworthiness is correct in every material particular. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) However, if— (a) a particular that was incorrectly declared in the survey report causes a marine incident; and (b) the marine incident involves the death of, or grievous bodily harm to, a person; the competent person commits an indictable offence and is liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. 41 General safety obligation of ship owners and masters about condition of ships (1) The owner and master of a ship must not operate the ship unless the ship is safe. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) However, if the contravention of subsection (1) causes a marine incident involving the death of, or grievous bodily harm to, a person, the owner and master commit an indictable offence and are liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. (3) For the purposes of this section, a ship is safe if it is seaworthy, and is appropriately equipped and crewed, to meet the ordinary perils of the voyage on which the ship is proceeding or about to proceed. 42 Relationship between regulatory provisions and general safety obligations for competent persons and ship owners and masters (1) In this section— general safety provision means section 40 or 41. regulatory provision means a provision of a regulation or standard about the condition, equipping or crewing of ships. (2) This section applies if— (a) it is claimed in a proceeding that a person contravened a general safety provision because of the condition of a ship or its equipping or crewing (the safety issue); and (b) a regulatory provision provided a way of dealing with the safety issue to achieve safety. (3) If it is proved that the safety issue was not dealt with in the way provided by the regulatory provision, the general safety provision is taken to have been contravened unless the court is satisfied that— (a) to satisfy compliance with the general safety provision, it was reasonable for the person to rely on a survey report issued by a competent person, other than the person, that was in force for the ship and covered the safety issue (completely or partly); or (b) the general safety provision was complied with, despite noncompliance with the regulatory provision. (4) In deciding whether the general safety provision had been complied with despite noncompliance with the regulatory provision, the court must have regard to the objectives of this Act. 43 General safety obligation on persons involved with operation of ship (1) A person involved with a ship's operation (including the owner, master and crew members) must not cause the ship to be operated unsafely. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) Without limiting subsection (1), a person causes a ship to be operated unsafely if the person causes the ship to be operated in a way that— (a) causes a marine incident; or (b) contravenes— (i) a condition of the ship's registration under this Act that is about safety; or (ii) a provision of a regulation that is declared by a regulation to be a provision to which this section applies. (3) However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the owner, master, crew member or other person commits an indictable offence and is liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. (4) A person does not contravene this section because of subsection (2)(a) if the only basis for holding that a marine incident has been caused is lawful damage to, or danger of lawful damage to, property of which the person is the sole owner. (5) This section does not apply to a ship's pilot. Note— See section 45 for the obligation on pilots of ships. (6) In this section— lawful damage means damage that is not unlawful under the Criminal Code, section 469. 44 Safety equipment obligation (1) The owner or master of a ship must not operate a ship if— (a) the ship is required by a regulation to be equipped with safety equipment; and (b) the ship is not equipped with the safety equipment. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the owner or master commits an indictable offence and is liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. (3) In this section— safety equipment means equipment that is declared by a regulation to be safety equipment to which this section applies. Division 2 Other general safety obligations 45 General safety obligation on pilot who has conduct of ship (1) A pilot who has the conduct of a ship must not cause the ship to be operated unsafely. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) Without limiting subsection (1), a pilot causes a ship to be operated unsafely if the pilot causes the ship to be operated in a way that— (a) causes a marine incident; or (b) contravenes— (i) a condition of the ship's registration under this Act that is about safety; or (ii) a provision of a regulation that is declared by a regulation to be a provision to which this section applies. (3) However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the pilot commits an indictable offence and is liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. 46 General safety obligation on managing pilotage entity (1) A managing pilotage entity for a compulsory pilotage area must not provide for the piloted movement of ships in the pilotage area in an unsafe way. Maximum penalty—500 penalty units or imprisonment for 1 year. (2) Without limiting subsection (1), a managing pilotage entity causes the piloted movement of ships to be provided in an unsafe way if— (a) the managing pilotage entity employs an individual as a pilot; and (b) the individual is not appropriately licensed. (3) However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the managing pilotage entity commits an indictable offence and is liable to a maximum penalty of 5,000 penalty units or imprisonment for 2 years. 52 [Repealed] Part 5 Registration, licensing and permits Division 1 Registration of Queensland regulated ships 54 Application of div 1 A provision of this division applies only to Queensland regulated ships declared by regulation to be ships to which the provision applies. Note— See the national law, part 4, division 3 for provisions about certificates of operation for domestic commercial vessels. 55 Definition for div 1 In this division— registered means registered under this Act. 56 Regulation may require registration of ship A regulation may require that a ship be registered as a recreational ship or an other Queensland regulated ship. 57 Contravention of registration obligations (1) The owner or master of a ship must not operate the ship if the ship is required to be registered, but is not registered. Maximum penalty—200 penalty units. (2) If a ship is registered as a recreational ship, the ship's owner or master must not operate the ship other than as a recreational ship or as otherwise provided for under a regulation. Maximum penalty—200 penalty units. (3) If a ship is registered as an other Queensland regulated ship, the ship's owner or master must not operate the ship for private recreation other than as provided for under a regulation. Maximum penalty—200 penalty units. (4) If a ship is registered on conditions, the owner or master must not operate it in contravention of the conditions. Maximum penalty—200 penalty units. 58 Registration, amendment, renewal and transfer etc. Registration, amendment of registration, renewal of registration, transfer of registration or exemption from registration may be applied for, and granted or refused, as prescribed by regulation. 59 Cancellation, suspension and amendment of registration The chief executive or general manager may cancel or suspend the registration of a ship, or amend the registration of a ship without application by the owner, only by fair procedures prescribed by regulation. Division 2 Licensing of masters and crew members of Queensland regulated ships 59A Application of div 2 A provision of this division applies only to Queensland regulated ships declared by regulation to be ships to which the provision applies. Note— See the national law, part 4, division 4 for provisions about certificates of competency for particular duties or functions for domestic commercial vessels. 60 Regulation may require licences (1) A regulation may require a person to hold a licence— (a) to operate a ship as its master; or (b) to act as a crew member of a ship. (2) In this section— licence includes a certificate of competency, service or recognition and a permit. 61 Operation of ship as master etc. without required licence (1) A person must not operate a ship as its master if the person is required to be licensed, but is not appropriately licensed. Maximum penalty—40 penalty units. (2) A person must not act as a crew member of a ship if the person is required to be licensed, but is not appropriately licensed. Maximum penalty—40 penalty units. Division 3 Licensing of pilots 61A Application of div 3 A provision of this division applies only to ships declared by regulation to be ships to which the provision applies. 61B Regulation may require pilot licence (1) A regulation may require a person to hold a licence to have the conduct of a ship as its pilot. (2) In this section— licence includes a certificate of competency, service or recognition and a permit. 61C Operation of ship as pilot without required licence A person must not have the conduct of a ship as its pilot if the person is required to be licensed, but is not appropriately licensed. Maximum penalty—40 penalty units. Division 4 General licence provisions 62 Grant, amendment and renewal of licences (1) The grant, amendment or renewal of a licence may be applied for, and granted or refused, as prescribed by regulation. (2) A regulation may make provision for licences to be granted, amended or renewed— (a) by the chief executive or general manager; or (b) by an entity accredited, under the regulation, by the chief executive or general manager. (3) Also, a regulation may provide for either the chief executive or the general manager— (a) to conduct examinations, or to approve an entity to conduct examinations, to establish whether a person meets a requirement under a regulation; or (b) to approve an entity to conduct training programs about the operation of Queensland regulated ships. (4) Without limiting subsection (2), a regulation may provide for the following— (a) a marine licence indicator to be in the form approved by the chief executive or general manager, including a card on which information may be stored electronically; (b) a PIN to be used by the holder of a smartcard marine licence indicator as a security measure to protect information stored electronically on the smartcard marine licence indicator. 62A When licence is void A licence obtained by a false statement or misrepresentation is void. 63 Cancellation, suspension and amendment of licences The chief executive or general manager may cancel or suspend a licence, or amend a licence or marine licence indicator without application by the licensee, only by fair procedures prescribed by regulation. Note— Section 202C(1) provides that, when an order is made under section 202A for a person, a licence, and any subsisting licence, held by the person for whom the order is made is cancelled. Also, section 202I provides for a regulation-making power for cancelling or suspending a restricted licence. 63AA Smartcard marine licence indicator is property of the State (1) A smartcard marine licence indicator is and remains the property of the State. (2) Subsection (1) applies even though a person other than the State— (a) has the right to use information that is on the smartcard marine licence indicator or stored electronically on it; or (b) has the right to have information stored on the smartcard marine licence indicator. (3) The State is not legally liable for an act or omission relating to the keeping or use of the smartcard marine licence indicator. 63A [Repealed] 63AB [Repealed] 63B [Repealed] 63C [Repealed] 63D [Repealed] 63F [Repealed] 63G [Repealed] 63H [Repealed] Division 5 Restricted release of information about marine licences 63I Restricted written release of information (1) The chief executive or general manager may release, in writing, information kept under this Act about a person's marine licence or marine history to— (a) on receiving an application in the approved form— (i) the person; or (ii) with the person's written consent—another person; or (b) the commissioner of the police service for the purpose of any function of the commissioner or any function of the police service; or (c) an entity that, under an agreement between the State and other governments, maintains a database containing information about marine licences and marine histories. (2) Also, the chief executive may release, in writing, to an entity information kept under this Act about a person's marine licence if— (a) the person produces the person's smartcard marine licence indicator to the entity as proof of the person's identity; and (b) the entity applies in the approved form for the information; and (c) the information is necessary to verify the validity of the smartcard marine licence indicator. (3) Before releasing information to a person or entity under subsection (1)(c), the chief executive or general manager must be satisfied any release of the information by the person or entity will be limited to circumstances similar to those mentioned in subsection (1). (4) An application mentioned in subsection (1)(a) or (2)(b) may be made by electronic communication. (5) This section does not limit section 205B. Note— Section 205B deals with the electronic search of information to verify that a person is the holder of a licence under this Act. 63J Restricted oral release of particular information (1) The chief executive may orally release, to a person, information kept under this Act about the person's marine licence or marine history. (2) However, subsection (1) applies only if the chief executive is satisfied that the person is the person to whom the information relates. Example for subsection (2)— The chief executive may be satisfied as required under subsection (2) if the person correctly answers a series of questions, or produces a document, for identifying the person. 64 [Repealed] 65 [Repealed] 66 [Repealed] 66A [Repealed] 67 [Repealed] 68 [Repealed] 69 [Repealed] 70 [Repealed] 70A [Repealed] 70B [Repealed] 70C [Repealed] Part 6 Pilotage areas 71 Pilotage areas and compulsory pilotage areas A regulation may— (a) declare— (i) an area of Queensland waters to be a pilotage area; or (ii) a pilotage area, or part of a pilotage area, to be a compulsory pilotage area; or (b) close a pilotage area or a part of a pilotage area. 71A Who is the responsible pilotage entity for a compulsory pilotage area (1) The responsible pilotage entity for a compulsory pilotage area is the entity prescribed under a regulation as the responsible pilotage entity for the pilotage area. (2) A responsible pilotage entity has the function of providing, or arranging for the provision of, pilotage services in its compulsory pilotage area. 72 Harbour master may permit ship navigation in closed pilotage area (1) If a pilotage area or part of a pilotage area is closed by regulation, a harbour master may permit a person to— (a) cause a ship to enter, leave or navigate in the area or part; or (b) anchor, berth or moor a ship in the area or part. (2) If it is not practicable for the harbour master to give the person a written permission under subsection (1), the harbour master must make a written note of the permission and its details. 73 Failure to comply with closure of pilotage area (1) This section applies if a regulation closes a pilotage area or part of a pilotage area. (2) A person must not, without the permission of a harbour master— (a) cause a ship to enter, leave or navigate in the pilotage area or part, unless the person has a reasonable excuse; or (b) anchor, berth or moor a ship in the pilotage area or part, unless the person has a reasonable excuse. Maximum penalty—200 penalty units. Part 7 Harbour masters Division 1 General 74 Appointment of harbour masters (1) The chief executive may appoint an officer or employee of MSQ to be a harbour master. (2) A person appointed as a harbour master is a shipping inspector without further appointment. 75 Only qualified persons may be appointed as harbour masters The chief executive may appoint a person to be a harbour master only if— (a) in the chief executive's opinion, the person has the necessary expertise or experience to be a harbour master and shipping inspector; or (b) the person has satisfactorily finished training approved by the chief executive. 76 Limitations on powers of a harbour master (1) The powers of a harbour master may be limited— (a) under a regulation; or (b) under a condition of appointment; or (c) by notice of the chief executive given to the harbour master. (2) In exercising a power, a harbour master is subject to the direction of the general manager. 77 Harbour master to consult with port authority (1) Before a harbour master exercises a power that may affect the functions of a port authority, the harbour master must consult with the port authority to the extent reasonably practicable. (2) Failure to comply with subsection (1) does not affect the validity of the exercise of the power. 77A Harbour master to consult with Gold Coast Waterways Authority (1) Before a harbour master exercises a power that may affect the functions of the Gold Coast Waterways Authority, the harbour master must consult with the Gold Coast Waterways Authority to the extent reasonably practicable. (2) Failure to comply with subsection (1) does not affect the validity of the exercise of the power. 78 End of appointment The appointment of a person as a harbour master ends if the person ceases to be an officer or employee of MSQ. 79 Delegation by harbour master (1) A harbour master may delegate the harbour master's functions to— (a) an officer or employee of the public service who the harbour master is satisfied has the necessary expertise or experience to exercise the functions; or (b) a shipping inspector; or (c) an officer or employee of a port authority; or (ca) an employee of MSQ; or (d) a police officer; or (e) someone else prescribed by regulation. (2) A delegation under subsection (1)(d) has effect only if the commissioner of the police service has given written approval to the proposed delegation. (3) In this section— functions include powers. 80 Identity cards (1) The chief executive must give an identity card to each harbour master. (2) A harbour master who delegates functions or powers to a person, other than a shipping inspector, must give an identity card to the person. (3) The identity card of a harbour master or a harbour master's delegate must— (a) contain a photograph of the harbour master or delegate; and (b) be in a form approved by the chief executive; and (c) be signed by the harbour master or delegate. (4) A person who ceases to be a harbour master or delegate must return the person's identity card to the chief executive as soon as is practicable after the person ceases to be a harbour master or delegate, unless the person has a reasonable excuse for not returning it. Maximum penalty for subsection (4)—40 penalty units. 81 Proof of authority (1) A harbour master must display the harbour master's identity card for inspection by a person if the harbour master, in person, gives a direction to the person or exercises another power in relation to the person. (2) If, for any reason, it is not practicable to comply with subsection (1), the harbour master must produce the identity card for inspection by the person at the first reasonable opportunity. (3) If a harbour master gives a written direction to a person, the written direction must be on letterhead approved by the chief executive. (4) If a harbour master gives a direction to a person by radio, megaphone or another form of distance communication, the harbour master must identify himself or herself as a harbour master. 82 Protection from liability (1) A harbour master is not civilly liable for an act or omission done honestly and without negligence under this Act. (2) If subsection (1) prevents a civil liability attaching to a harbour master, the liability attaches instead to the State. 83 Harbour masters to give notice of damage (1) A harbour master who, in the exercise of a power under this part, damages anything must promptly give written notice of the particulars of the damage. (2) The notice must be given— (a) if the thing is a ship or is on a ship—to the ship's master; or (b) in any other case—to the person who appears to the harbour master to be the owner of the thing. (3) If, for any reason, it is not practicable to comply with subsection (2), the harbour master must— (a) leave the notice on the thing that is damaged; and (b) ensure the notice is left in a reasonably secure way in a conspicuous position. 84 Impersonation of harbour master A person must not pretend to be a harbour master. Maximum penalty—40 penalty units. 85 Obstruction of harbour master A person must not obstruct a harbour master in the exercise of a power, unless the person has a reasonable excuse. Maximum penalty—200 penalty units. Division 2 Powers of harbour masters Subdivision 1 Powers of direction 86 General limitation on harbour master's power to give directions under subdivision (1) A harbour master may give a direction under this subdivision only if the harbour master reasonably considers it necessary to give the direction to ensure safety. (2) In giving the direction, the harbour master must have regard to the need to ensure the effectiveness and efficiency of the Queensland maritime industry. 86A Direction may be general or particular (1) A direction under this subdivision may be given as a general direction or particular direction. (2) A general direction is a direction that— (a) applies to all ship owners, ship masters, ships, other persons or matters; or (b) is limited in its application to stated classes of ship owners, ship masters, ships, other persons or matters; or (c) otherwise applies generally or generally with stated exceptions or factors. (3) A general direction may— (a) make different provision for different ship owners, ship masters, ships, other persons or matters, or different classes of ship owners, ship masters, ships, other persons or matters; or (b) apply differently to stated exceptions or factors. (4) A particular direction is a direction that applies to— (a) a particular ship owner or ship master, including an owner or master mentioned in the direction only as the owner or master of a stated particular ship; or (b) a particular ship; or (c) another particular person or matter. (5) A general direction or particular direction may be given orally, in writing or in another way. (6) Without limiting subsection (5)— (a) an oral direction may be given by the harbour master, an agent of the harbour master or a shipping inspector— (i) personally to a person; or (ii) by phone, radio or another form of electronic communication; or (iii) by megaphone or another form of distance communication; or (b) a written direction may be given by way of a written notice published or otherwise reasonably made available or known to any person to whom it applies, including, for example, by publication in a newspaper or by a fax or email; or (c) a direction may be given in another way appropriate for the maritime environment by being published or otherwise reasonably made available or known to any person to whom it applies, including, for example, by use of flags or lights. (7) For a particular direction applying to a ship's master, the direction may be given to another person in control of the ship if it is not practicable to give the particular direction to the ship's master. (8) A particular direction given under subsection (7) to a person in control of a ship, other than the ship's master, is taken to have been given to the ship's master. (9) In a proceeding, if an issue arises about whether a direction was given to a person, the party alleging the direction was given must prove that the person had, or reasonably ought to have had, knowledge of the direction. 87 Power of Minister to require directions (1) The Minister may ask the chief executive to require a harbour master to give a direction under this subdivision. (2) Section 86 does not apply to the giving of the direction by a harbour master. (3) A request may only be made by the Minister if the Minister is satisfied that exceptional circumstances exist to justify the Minister's intervention in the public interest. (4) If the Minister makes a request under this section, the request must be— (a) notified in the gazette as soon as practicable after it is made; and (b) tabled in the Legislative Assembly within 14 days after it is given. 87A Owner of ship lost, abandoned or stranded (1) This section applies if— (a) a ship is lost, abandoned or stranded; and (b) a harbour master may, or is required to, give a direction under this subdivision to a person about the ship. (2) For this division, the person who was the recorded owner of the ship immediately before the ship was lost, abandoned or stranded is taken to be the owner of the ship and the person to whom the direction may or must be given, unless the contrary is proved. (3) Without limiting subsection (2), if a harbour master incurs expense (whether the expense is the harbour master's expense or the State's expense) in exercising a power under section 93 in relation to the direction, the person taken to be the owner under subsection (2) is the person who is liable for the amount of the expense that may, under section 94, be recovered from the owner of the ship. (4) If, under subsection (2), more than 1 person is taken to be the owner of the ship, on the giving of the direction to any of the owners, all of the owners are jointly and severally liable for the amount of the expense mentioned in subsection (3). (5) In this section— recorded owner means— (a) for a domestic commercial vessel—the holder of the vessel's certificate of operation under the national law; or (b) for another ship—the person in whose name the ship is registered under this Act or a law of another jurisdiction, whether inside or outside Australia. 87B Direction to master about operation of ship in relation to a marine incident area (1) A harbour master may direct the master of a ship to operate the ship in a stated way. (2) Without limiting subsection (1), the harbour master may direct the master of a ship in or adjacent to a marine incident area to operate the ship in a stated way, including, for example, in any of the following ways— (a) not to cause the ship to enter the marine incident area; (b) to cause the ship to enter the marine incident area in a stated way; (c) to navigate the ship in the marine incident area in a stated way; (d) to anchor, berth or moor the ship at a stated place in the marine incident area; (e) to move the ship from an anchorage, berth or mooring in the marine incident area; (f) to cause the ship to leave the marine incident area or to leave the marine incident area in a stated way. (3) A person must not contravene a direction under this section, unless the person has a reasonable excuse. Maximum penalty for subsection (3)—200 penalty units. 88 Direction to master about operation of ship in relation to pilotage area (1) A harbour master may direct the master of a ship to navigate or otherwise operate the ship in relation to a pilotage area in a specified way, including, for example— (a) not to cause the ship to enter the pilotage area; or (b) to cause the ship to enter the pilotage area in a specified way; or (c) to navigate the ship in the pilotage area in a specified way; or (d) to anchor, berth or moor the ship at a specified place in, or adjacent to, the pilotage area; or (e) to move the ship from an anchorage, berth or mooring in the pilotage area; or (f) to cause the ship to leave the pilotage area or to leave the pilotage area in a specified way. (2) A person must not contravene a direction under subsection (1), unless the person has a reasonable excuse for the contravention. Maximum penalty for subsection (2)—200 penalty units. 88A Direction to managing pilotage entity about pilotage services (1) A harbour master may direct a managing pilotage entity for a compulsory pilotage area to provide, or arrange for the provision of, pilotage services in the pilotage area in a specified way. (2) The managing pilotage entity must not contravene a direction under subsection (1), unless the managing pilotage entity has a reasonable excuse for the contravention. Maximum penalty for subsection (2)—200 penalty units. 89 Direction to person in charge of a place (1) A harbour master may direct the person in charge of a place in, or adjacent to, a marine incident area or pilotage area— (a) to allow a ship to be berthed at the place or moved from the place; or (b) to allow access through the place to and from the ship. (2) A person must comply with a direction under subsection (1), unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (2)—200 penalty units. 90 Direction to person carrying out works (1) A harbour master may direct a person who is carrying out construction work in or near a marine incident area or pilotage area to light or mark the works in a specified way. (2) The direction may specify when the action is to be taken. (3) A person must comply with a direction under subsection (1), unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (3)—200 penalty units. 91 Direction to person about obstruction (1) A harbour master may direct a person responsible for something that is obstructing, or may obstruct, navigation to remove it. (2) The direction may specify how, when and to where the thing must be moved. (3) A person must comply with a direction under subsection (1), unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (3)—200 penalty units. 92 Direction to person to put out certain lights etc. (1) This section applies if a harbour master reasonably believes a light, sign, signal, electrical or radio installation or equipment or anything else (a source of interference)— (a) may be or has been mistaken for, may interfere or is interfering with, or may otherwise affect or is otherwise affecting the proper operation of, an aid to navigation; or (b) may otherwise affect the safe operation of ships. (2) The harbour master may direct the following persons to put out, remove or screen the source of interference, or to take other specified action in relation to the source of interference— (a) the owner or occupier of the place where the source of interference is situated; (b) the person the harbour master reasonably believes owns or is responsible for the source of interference. (3) The direction may specify how and when the action is to be taken. (4) A person must comply with a direction under subsection (2), unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (4)—200 penalty units. Subdivision 2 Other powers 93 Harbour master may carry out direction (1) This section applies if— (a) a person has contravened a direction under subdivision 1 that the person must comply with; or (b) a harbour master reasonably believes there is no-one to whom a proposed direction under subdivision 1 may be given and, because of urgent circumstances, the harbour master must act under this section. (2) The harbour master may, to the extent necessary to ensure safety as mentioned in section 86(1), carry out the direction or proposed direction. (3) Without limiting subsection (2), the harbour master may— (a) board a ship and operate it, including, for example, by moving or navigating it; or (b) enter or remain in a place in, or adjacent to, a marine incident area or pilotage area in order to board a ship and anchor, berth, moor or move it; or (c) light or mark construction works; or (d) remove a thing that is obstructing, or may obstruct, navigation; or (e) put out, remove or screen, or take other action in relation to, a source of interference. (4) If the harbour master attaches the ship (the first ship) to another ship or a buoy, wharf or pile, this Act does not prevent the owner or master of the other ship, or the owner of the buoy, wharf or pile, from recovering damages for injury or loss suffered, because of the attachment, from the owner or master of the first ship. 94 Recovery by State of expenses of carrying out direction (1) This section applies if a harbour master incurs expense (whether the expense is the harbour master's expense or the State's expense) in exercising a power under section 93. (2) The amount of the expense may be recovered as a debt by the State by action in a court of competent jurisdiction from the persons liable for the expense. (3) The following persons are liable for the expense— (a) if a direction was given to a person under section 87B, 89, 90, 91 or 92 and the person did not comply with the direction—the person; (b) if a direction under section 87B, 89, 90, 91 or 92 could have been given to a person but was not given for the reasons mentioned in section 93(1)(b)—the person; (c) if a direction under section 88 was given to the master of a ship and the master did not comply with the direction—the master and the owner of the ship; Note for paragraph (c)— Under section 86A(8) a direction given to the person in control of a ship is taken to have been given to the ship's master. (d) if a direction under section 88 could have been given to the master of a ship but was not given for the reasons mentioned in section 93(1)(b)—the master and the owner of the ship. (4) If, under subsection (3), more than 1 person is liable for the same expense, the persons who are liable for the expense are jointly and severally liable. (5) In this section— direction means— (a) a direction given under subdivision 1 that, under the subdivision, a person must comply with; or (b) a direction that could have been given under subdivision 1 and, if it had been given under the subdivision, a person would have been required to comply with. 95 Temporary closure of pilotage area by harbour master (1) A harbour master may close a pilotage area or a part of a pilotage area if the harbour master is satisfied that the closure is required for a limited period to ensure safety. (2) The harbour master must take the steps necessary to ensure that ships that may be affected by the closure are aware of it. (3) The harbour master must revoke the closure when the harbour master ceases to be satisfied that the closure is still required to ensure safety. (4) However, the closure ends 14 days after the closure is made if it is not earlier revoked. (5) When the closure ends, the harbour master must immediately take the steps necessary to ensure that ships that may be affected by the closure are aware of the ending of the closure. 96 Harbour master may permit ship navigation in closed pilotage area (1) If a pilotage area or part of a pilotage area is closed by a harbour master, a harbour master may permit a person to— (a) cause a ship to enter, leave or navigate in the pilotage area or part; or (b) anchor, berth or moor a ship in the pilotage area or part. (2) If it is not practicable for the harbour master to give written permission under subsection (1), the harbour master must make a written note of the permission and its details. 97 Failure to comply with closure of pilotage area by harbour master (1) This section applies if a harbour master closes the area or part of a pilotage area. (2) A person must not, without a harbour master's permission— (a) cause a ship to enter, leave or navigate in the pilotage area or part, unless the person has a reasonable excuse; or (b) anchor, berth or moor a ship in the pilotage area or part, unless the person has a reasonable excuse. Maximum penalty for subsection (2)—200 penalty units. Part 8 Pilots 98 Application of part This part applies only to ships declared by regulation to be ships to which the part applies. 99 Pilots required for ship navigation in compulsory pilotage area A person must not navigate a ship in a compulsory pilotage area unless the person uses the services of a pilot. Maximum penalty—200 penalty units. 100 Regulations about pilotage A regulation may provide for the duties of— (a) a ship's owner and master to arrange for pilotage; and (b) a ship's master to ensure the safety of a pilot when the pilot is boarding, leaving or on board the ship; and (c) a ship's master to enable the pilot to discharge the pilot's duties; and (d) a pilot of a ship to ensure the safety of the ship in the pilotage area, whether the use of the pilot is required or voluntary; and (e) a pilot's employer— (i) to equip the pilot; and (ii) to develop and maintain the skills needed by the pilot to discharge the pilot's duties; and (f) a master exempted from pilotage under a regulation. 101 Immunity for pilots and general employers (1) A conducting pilot is not civilly liable for damage or loss caused by an act or omission of the conducting pilot. (2) A supervising pilot is not civilly liable for damage or loss caused by an act or omission of the conducting pilot or the supervising pilot. (3) The general employer of a conducting pilot or supervising pilot is not civilly liable for damage or loss caused by an act or omission of the conducting pilot or supervising pilot. (4) Subsections (1) to (3) do not affect— (a) any liability of a conducting pilot or supervising pilot's general employer for not appointing a qualified and competent person as a pilot; and (b) any liability of a ship's master and owner. (5) In this section— conducting pilot means a pilot who has the conduct of a ship as its pilot. general employer, of a conducting pilot or supervising pilot, means— (a) the responsible pilotage entity for the compulsory pilotage area in which the pilot is acting to supply pilotage services; or (b) if the responsible pilotage entity for a compulsory pilotage area has entered into a written agreement with another entity for the other entity to supply pilotage services in the pilotage area and the pilot is acting in the supply of the services—each party to the agreement. supervising pilot means a person who is licensed under a regulation as a pilot and who is on board a ship to train a conducting pilot or assess a conducting pilot's competence as a pilot. 102 Liability of owner or master of ship under pilotage (1) The pilot who has the conduct of a ship is subject to the master's authority. (2) The master of a ship is not relieved from responsibility for the ship's operation merely because the ship is under pilotage. (3) The owner and master of a ship being navigated by a pilot because the pilotage is compulsory under this Act or another Act is liable for loss or damage caused by the ship, or by a fault of the na