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.