Marine Safety (Misuse of Alcohol) Act 2006 (Tas)

Marine Safety (Misuse of Alcohol) Act 2006 An Act to improve marine safety by placing certain restrictions on the use of alcohol by persons having responsibilities connected with the operation of vessels and by providing for the enforcement of those restrictions, to make consequential amendments to the Road Safety (Alcohol and Drugs) Act 1970 and certain other Acts and for related purposes [Royal Assent 18 December 2006] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary Division 1 - Title and commencement 1. Short title This Act may be cited as the Marine Safety (Misuse of Alcohol) Act 2006 . 2. Commencement This Act commences on a day to be proclaimed. Division 2 - Interpretation 3. Interpretation In this Act, unless the contrary intention appears – adult means a person who has attained the age of 18 years; approved analyst – see section 8(3) ; approved operator – see section 8(4) ; blood-sampling means the taking of a sample of a person's blood; breath analysing instrument means a breath analysing instrument within the meaning of the Corresponding Act; breath analysis has the same meaning as in the Corresponding Act; breath test has the same meaning as in the Corresponding Act; commercial purposes includes – (a) the purposes of a passenger transport or ferry service, whether for paying or non-paying passengers; and (b) research purposes; commercial vessel means a vessel, other than a fishing vessel, that is being operated for commercial purposes; conviction, in relation to an offence, includes a finding of guilt without the recording of a conviction for the offence; Corresponding Act means the Road Safety (Alcohol and Drugs) Act 1970 ; corresponding maritime authority means an office or body established under a law of another State or a Territory, or under a law of the Commonwealth, and having functions that correspond, or substantially correspond, to those of MAST; disqualification order means an order under section 41(2)(b) or section 42(2) ; evidentiary certificate means a certificate specified in Part 1 of Schedule 1 ; evidentiary record means a record specified in Part 2 of Schedule 1 ; fail, to submit to a procedure or comply with a direction, includes refusing to submit to the procedure or comply with the direction; fishing vessel means a vessel that is being operated, other than under charter, for or in connection with the taking of fish for a commercial purpose other than marine farming; functions includes duties; in charge, of a vessel – see section 6 ; liability, of a person to submit to a breath test, breath analysis or blood-sampling, means a liability that the person incurs because of – (a) the operation of a provision of this Act; or (b) a requirement of a police officer under this Act; or (c) in the case of a blood-sampling under section 23 , the person's election to submit to the blood-sampling; mariners certificate means a certificate, licence, permit or other document (however described) that – (a) is issued by MAST or a corresponding maritime authority; and (b) authorises the person to whom it is issued to operate a vessel in a particular capacity in accordance with the conditions specified in that certificate, licence, permit or other document; maritime accident includes, but is not limited to – (a) vessels colliding; and (b) a vessel colliding with a navigational hazard; and (c) a vessel colliding with the shore or a structure on shore; and (d) a vessel running aground; and (e) an accident, involving the use of a vessel, that results in the death or injury of any person or damage to property; and (f) an explosion or outbreak of fire on a vessel; and (g) a vessel sinking or capsizing; MAST means the Marine and Safety Authority established under the Marine and Safety Authority Act 1997 ; medical evidence means the evidence of one or more medical practitioners; nurse means a registered nurse or an enrolled nurse; operating, a vessel, means either or both of the following: (a) being aboard and in charge of the vessel; (b) being aboard the vessel and exerting any degree of control over its means of steering or propulsion; owner, of a vessel – see section 5 ; permitted concentration means a concentration of 0.05 of a gram of alcohol in – (a) 210 litres of breath; or (b) 100 millilitres of blood; place includes a vehicle or vessel; prescribed, in relation to any matter, means – (a) prescribed in the regulations; or (b) if the regulations do not provide for that matter, prescribed under the Corresponding Act; procedure means a breath test, breath analysis or blood-sampling; proceedings means proceedings for an offence under this Act; provision, of a contract of insurance, means any term, condition, covenant or other provision of the contract, however described; regulations means regulations made and in force under this Act; relevant time – see section 4 ; secured, in relation to a vessel, means that the vessel is – (a) riding at anchor (other than a sea anchor); or (b) tied up to a mooring, or to a moored raft or moored pontoon; or (c) tied up to a jetty, wharf or breakwater; or (d) berthed in a marina; or (e) secured to another vessel to which paragraph (a) , (b) , (c) or (d) applies; or (f) connected up to something such as a crane, slipway cradle or trailer winch in order to be put into or taken out of the water; signatory, in relation to a certificate, means the person by whom the certificate purports to have been signed; subject, in relation to a test, analysis or sampling of breath or blood, means the person whose breath or blood has been tested, analysed or sampled; vessel means a vessel within the meaning of the Marine and Safety Authority Act 1997 . 4. Meaning of "relevant time" For the purposes of this Act, a reference to "the relevant time" is a reference to – (a) in relation to a person's liability to submit to a breath analysis under section 18 , the time when the person is first required to submit to a breath test under that section; and (b) in relation to a person's liability to submit to a breath analysis under section 19 , the time when the person is first required to submit to the breath analysis; and (c) in relation to a person's liability to submit to a breath analysis or blood-sampling under section 20 , the time when the person is first required to submit to the breath analysis or blood-sampling; and (d) in relation to a person's liability to submit to a breath analysis or blood-sampling under section 23 , the time when the person is first required to submit to the breath analysis. 5. Determining who is owner of vessel (1) A reference in this Act to the owner of a vessel includes a reference to a person who – (a) is registered (with or by MAST or a corresponding maritime authority) as the owner of the vessel; or (b) is a joint owner of the vessel; or (c) is the charterer, lessee or hirer of the vessel; or (d) has a right or obligation to exercise or perform any powers or functions of an owner of the vessel; or (e) publicly represents that he or she has the right or obligation to exercise or perform those powers or functions; or (f) is a director or other person concerned in the management of a body corporate that owns the vessel. (2) A person does not cease to be the owner of a vessel for the purposes of this Act if the vessel is – (a) secured under a mortgage, bill of sale, or other form of security; or (b) chartered, leased or hired by another person. 6. Determining who is in charge of vessel (1) For the purposes of this Act, a person is taken to be in charge of a vessel at a particular time if, at that time – (a) he or she is the only person, or the only adult, aboard the vessel; or (b) he or she purports by word or deed, and without contradiction by any other person aboard, to be in charge of the vessel; or (c) the other persons aboard the vessel or a majority of them acknowledge, by word or deed, that the person is in charge of the vessel; or (d) of all the persons aboard the vessel, he or she has ultimate command of the vessel's movements. (2) Subsection (1)(d) has effect regardless of whether, at the particular time – (a) the vessel is underway; or (b) the person is actually commanding the vessel's movements. (3) If it is established in any proceedings that, at a particular time, a person was the owner of a vessel and was – (a) aboard the vessel; and (b) qualified by a mariners certificate to be in charge of or otherwise operate the vessel – it is to be presumed, unless the person on the balance of probabilities establishes otherwise, that he or she had ultimate command of the vessel's movements at that time. 7. Status of pilots and masters, &c., of piloted vessels For the avoidance of doubt – (a) a person who is purporting to exercise the powers or perform the functions of a pilot on a vessel at a particular time is, for the purposes of this Act, taken to be operating the vessel at that time; and (b) a person is not, for the purposes of this Act, taken to have ceased being in charge of a vessel by reason only that the vessel is temporarily under the direction of a pilot. 8. Approved analysts and approved operators (1) . . . . . . . . (2) For the purposes of this Act, an approved analyst has such functions as may be prescribed in relation to the following matters: (a) the maintenance, testing and use of breath analysing instruments; (b) the training and instruction of approved operators; (c) the making and keeping of records relating to the maintenance, testing and use of breath analysing instruments. (3) A person who is an approved analyst for the purposes of the Corresponding Act is also an approved analyst for the purposes of this Act. (4) A person who is an approved operator for the purposes of the Corresponding Act is also an approved operator for the purposes of this Act. Division 3 - Application of Act 9. Which vessels does Act apply to? (1) This Act applies to every vessel other than – (a) a vessel under the control of the Australian Defence Force; or (b) a warship, naval auxiliary or other vessel operating exclusively in the non-commercial government service of a foreign country. (2) Subsection (1) has effect regardless of whether the waters that a vessel is in are navigable. (3) In this section – non-commercial includes scientific research. 10. When does Act apply to vessels? (1) Unless the contrary intention appears, this Act only applies to vessels that are – (a) underway; or (b) involved in maritime accidents. (2) A vessel is taken to be underway for the purposes of this Act if it is not secured. (3) To avoid doubt, a vessel is taken to be underway for the purposes of this Act even if it is – (a) drifting, with or without a sea anchor; or (b) moving otherwise than under its own power; or (c) temporarily stranded, and not secured. (4) However, the fact that a vessel is not underway does not prevent police officers from exercising powers under this Act in respect of the vessel, or in respect of persons on or from the vessel, for the purposes of enforcing this Act, particularly as regards – (a) acts or omissions that occurred, or may have occurred, while the vessel was underway; or (b) acts or omissions that would or would be likely to occur if the vessel were to get underway. 11. Extra-territorial operation (1) If – (a) a person does, wholly or partly outside Tasmania, an act or thing that constitutes an offence under section 13(1) , section 14(1) , section 14(2) , section 16(1) , section 17(1) or section 17(2) ; and (b) there is a real and substantial link between doing the act or thing and Tasmania – that section, and the other provisions of this Act, applies to that act or thing as if it had been done wholly in Tasmania. (2) For the purposes of subsection (1) , there is a real and substantial link with Tasmania if – (a) a significant part of the conduct relating to, or constituting, the doing of the act or thing occurred in Tasmania; or (b) where the act or thing was done wholly or partly outside Tasmania, substantial harmful effects arose in Tasmania. 12. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Restrictions on Use of Alcohol by Mariners Division 1 - Commercial vessels 13. Person who has consumed alcohol not to operate commercial vessel (1) A person must not operate a commercial vessel if there is alcohol in the person's breath or blood. Penalty: The penalty provided for this offence by section 41 . (2) However, it is a defence in proceedings for an offence under subsection (1) if the defendant establishes that – (a) at the time of the alleged offence, there was an emergency threatening the safety of the commercial vessel or persons aboard the commercial vessel; and (b) the emergency was unrelated to the conduct of the defendant; and (c) it was necessary for the defendant to operate the commercial vessel in a particular capacity at that time in order to deal with the emergency; and (d) the defendant did not operate the commercial vessel in that capacity for any longer than was reasonably necessary to deal with the emergency. 14. Person who has consumed alcohol not to be allowed to operate commercial vessel (1) The owner of a commercial vessel must not cause or allow a person who has alcohol in his or her breath or blood to operate the commercial vessel. Penalty: In the case of – (a) a first offence, a fine not exceeding 50 penalty units; and (b) a second offence, a fine not exceeding 100 penalty units; and (c) a third or subsequent offence, a fine not exceeding 200 penalty units. (2) The person in charge of a commercial vessel must not cause or allow another person to operate the commercial vessel if that other person has alcohol in his or her breath or blood. Penalty: In the case of – (a) a first offence, a fine not exceeding 50 penalty units; and (b) a second offence, a fine not exceeding 100 penalty units; and (c) a third or subsequent offence, a fine not exceeding 200 penalty units. (3) However, it is a defence in proceedings for an offence under subsection (1) or (2) if the defendant establishes that, at the time of the alleged offence, the defendant did not know and could not reasonably have been expected to know that the person who the defendant caused or allowed to operate the commercial vessel had alcohol in his or her breath or blood. (4) It is also a defence in proceedings for an offence under subsection (1) or (2) if the defendant establishes that – (a) at the time of the alleged offence, there was an emergency threatening the safety of the commercial vessel or persons aboard the commercial vessel; and (b) the emergency was unrelated to the conduct of the defendant or the person who the defendant caused or allowed to operate the commercial vessel; and (c) it was necessary for the defendant to cause or allow that person to operate the commercial vessel in a particular capacity at that time in order to deal with the emergency; and (d) the defendant did not cause or allow that person to operate the commercial vessel in that capacity for any longer than was reasonably necessary to deal with the emergency. Division 2 - Other vessels 15. Application of Division This Division applies to vessels other than commercial vessels. 16. Person who has consumed more than certain amount of alcohol not to operate non-commercial vessel (1) A person must not operate a vessel to which this Division applies if there is more than the permitted concentration of alcohol in the person's breath or blood. Penalty: The penalty provided for this offence by section 41 . (2) However, it is a defence in proceedings for an offence under subsection (1) if the defendant establishes that, at the time of the alleged offence – (a) another person had overall control of the vessel's means of steering and propulsion; and (b) that other person was an adult who was competent to exercise that control; and (c) that other person did not have more than the permitted concentration of alcohol in his or her breath or blood. (3) It is also a defence in proceedings for an offence under subsection (1) if the defendant establishes that – (a) at the time of the alleged offence, there was an emergency threatening the safety of the vessel or persons aboard the vessel; and (b) the emergency was unrelated to the conduct of the defendant; and (c) it was necessary for the defendant to operate the vessel in a particular capacity at that time in order to deal with the emergency; and (d) the defendant did not operate the vessel in that capacity for any longer than was reasonably necessary to deal with the emergency. 17. Person who has consumed more than certain amount of alcohol not to be allowed to operate non-commercial vessel (1) The owner of a vessel to which this Division applies must not cause or allow a person who has more than the permitted concentration of alcohol in his or her breath or blood to operate the vessel. Penalty: In the case of – (a) a first offence, a fine not exceeding 25 penalty units; and (b) a second offence, a fine not exceeding 50 penalty units; and (c) a third or subsequent offence, a fine not exceeding 100 penalty units. (2) The person in charge of a vessel to which this Division applies must not cause or allow another person to operate the vessel if the other person has more than the permitted concentration of alcohol in his or her breath or blood. Penalty: In the case of – (a) a first offence, a fine not exceeding 25 penalty units; and (b) a second offence, a fine not exceeding 50 penalty units; and (c) a third or subsequent offence, a fine not exceeding 100 penalty units. (3) However, it is a defence in proceedings for an offence under subsection (1) or (2) if the defendant establishes that, at the time of the alleged offence, the defendant did not know and could not reasonably have been expected to know that the person who the defendant caused or allowed to operate the vessel had more than the permitted concentration of alcohol in his or her breath or blood. (4) It is also a defence in proceedings for an offence under subsection (1) or (2) if the defendant establishes that – (a) at the time of the alleged offence, there was an emergency threatening the safety of the vessel or persons aboard the vessel; and (b) the emergency was unrelated to the conduct of the defendant or the person who the defendant caused or allowed to operate the vessel; and (c) it was necessary for the defendant to cause or allow that person to operate the vessel in a particular capacity at that time in order to deal with the emergency; and (d) the defendant did not cause or allow that person to operate the vessel in that capacity for any longer than was reasonably necessary to deal with the emergency. PART 3 - Enforcement of Alcohol Restrictions Division 1 - Police may require breath tests, breath analyses and blood-samplings 18. Breath testing, &c., of vessel operators (1) This section applies if it appears to a police officer that a person is, or has just ceased, operating a vessel. (2) To determine whether an offence has been committed under Part 2 , the police officer may require the person to submit to a breath test. (3) The police officer may impose the requirement whether or not – (a) the police officer suspects there is alcohol in the person's breath or blood; or (b) the vessel is underway. (4) After the police officer imposes the requirement, the person also becomes liable to submit to a breath analysis if the police officer (or another police officer) reasonably suspects (from the result of the breath test or otherwise) that there is alcohol in the person's breath or blood. 19. Breath analysis, &c., of vessel operators suspected of having consumed alcohol (1) This section applies if – (a) it appears to a police officer that a person is, or has just ceased, operating a vessel; and (b) the police officer reasonably suspects that there is alcohol in the person's breath or blood. (2) To determine whether an offence has been committed under Part 2 , the police officer may require the person to submit to a breath analysis. (3) The police officer may impose the requirement whether or not the vessel is underway. (4) If the police officer requires the person to submit to a breath analysis, the police officer (or another police officer) may require the person firstly to submit to a breath test. 20. Breath analysis, &c., of persons involved in maritime accidents (1) This section applies if – (a) it appears to a police officer that a maritime accident has occurred; and (b) the police officer reasonably suspects that a person was aboard a vessel involved in the maritime accident when it occurred. (2) The police officer may require the person to submit to a breath analysis or blood-sampling. (3) The police officer may impose the requirement whether or not – (a) the police officer suspects that there is alcohol in the person's breath or blood; or (b) the person is, or was when the maritime accident occurred, operating the vessel; or (c) any vessel apparently involved in the maritime accident is underway. (4) If the police officer requires the person to submit to a breath analysis or blood-sampling, the police officer (or another police officer) may require the person firstly to submit to a breath test. Division 2 - Liability to submit to breath test, breath analysis or blood-sampling 21. Liable person must submit to breath test, breath analysis or blood-sampling (1) This section applies if a person is liable to submit to a breath test, breath analysis or blood-sampling under Division 1 . (2) The person must not, without reasonable excuse, fail to – (a) submit to the breath test, breath analysis or blood-sampling; or (b) comply with such directions as the police officer requiring the person to submit to the breath test, breath analysis or blood-sampling (or another police officer) may give the person to enable it to be carried out. Penalty: Fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month, or both. (3) Without limiting the generality of subsection (2)(b) , the person may be directed to – (a) go to such place (by such means and with such persons) as the police officer giving the direction nominates; and (b) submit to the breath test, breath analysis or blood-sampling at that place. (4) However, it is a defence in proceedings for an offence under subsection (2) in respect of a breath analysis liability if the defendant establishes that – (a) the defendant was informed by the approved operator of a breath analysing instrument or a police officer that the defendant could elect to submit to a blood-sampling instead of the breath analysis; and (b) the defendant made that election; and (c) the blood-sampling was carried out, or could have practicably been carried out, within 3 hours after the relevant time. (5) In proceedings for an offence under subsection (2) , the medical or physical condition of the defendant at the time of the alleged offence is not a reasonable excuse for the purposes of that subsection unless the court is satisfied by medical evidence that, by reason of that condition – (a) it was not possible, practicable or safe for the defendant to submit to the relevant procedure; or (b) the defendant would have suffered an abnormally high level of pain, discomfort or distress in submitting to the relevant procedure; or (c) it was otherwise unreasonable to expect the defendant to submit to the relevant procedure. 22. Liable person failing to submit to breath test, breath analysis or blood-sampling may be taken into custody (1) This section applies if a person who is liable to submit to a breath test, breath analysis or blood-sampling under Division 1 – (a) fails to submit to the breath test, breath analysis or blood-sampling; or (b) fails to comply with a direction under section 21(2)(b) given in connection with the breath test, breath analysis or blood-sampling, or is in such a condition or behaves in such a manner as to give the police officer who has given the direction (or another police officer) reasonable grounds to believe that the person will not comply with the direction. (2) A police officer may – (a) take the person into custody; and (b) convey the person, or cause the person to be conveyed, to some appropriate place; and (c) detain the person at that place for so long as is necessary to enable a requirement to be imposed on the person under section 23 . (3) The person, if taken into custody pursuant to subsection (2) , must not – (a) escape or attempt to escape from custody; or (b) obstruct or hinder his or her conveyance to a place pursuant to that subsection. Penalty: Fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month, or both. 23. Person liable to submit to breath analysis may elect to have blood-sampling instead (1) This section applies if – (a) a person who is liable to submit to a breath analysis under Division 1 is being detained at a place pursuant to section 22(2) ; and (b) a breath analysis can be carried out forthwith at the place. (2) A police officer may require the person to submit to a breath analysis at the place. (3) If the person fails to comply with the requirement, the approved operator of a breath analysing instrument at the place is to inform the person that he or she may elect to submit to a blood-sampling instead of the breath analysis. (4) However, the approved operator need not comply with subsection (3) if he or she does not believe that the blood-sampling could be practicably begun within 3 hours after the relevant time. (5) If the blood-sampling election is offered and the person makes that election, the approved operator is to arrange for a medical practitioner or nurse to carry out the blood-sampling. 24. Offence to refuse breath analysis while in custody if alternative election not made, &c. (1) This section applies if a person is liable to submit to a breath analysis under section 23(2) . (2) The person must not fail to submit to the breath analysis. Penalty: Fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month, or both. (3) However, it is a defence in any proceedings for an offence under subsection (2) if the defendant establishes that – (a) the defendant was informed in accordance with section 23(3) that he or she could elect to submit to a blood-sampling instead of the breath analysis; and (b) the defendant made that election; and (c) the blood-sampling was, or could have practicably been, carried out within 3 hours after the relevant time. 25. Duration of breath analysis liability (1) A person's liability to submit to a breath analysis or blood-sampling under Division 1 or section 23(2) expires 3 hours after the relevant time if the breath analysis or blood-sampling is not begun within those 3 hours. (2) A police officer is to have regard to subsection (1) when enforcing this Act and, more specifically, is not to require a person to submit to a breath analysis under Division 1 or section 23 , or to a blood-sampling under Division 1 , unless the police officer believes that the breath analysis or blood-sampling could be practicably begun before the person's liability to submit to it expires. (3) However, a failure to comply with subsection (2) does not invalidate any action of a police officer. 26. Offence to attempt to manipulate result of breath test, breath analysis or blood-sampling (1) This section applies if a person has become liable under this Act to submit to a breath test, breath analysis or blood-sampling. (2) The person must not, before submitting to the breath test, breath analysis or blood-sampling, do anything with the intention of altering the concentration of alcohol in the person's blood. Penalty: Fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month, or both. 27. Enforcement procedures not to jeopardise safety of persons being given first aid, &c. (1) This section applies if first aid or medical treatment is being administered to a person by – (a) a medical practitioner; or (b) a nurse; or (c) an ambulance officer. (2) A police officer is not entitled to require the person to submit to a breath test, breath analysis or blood-sampling under this Act unless the person responsible for administering the first aid or medical treatment has – (a) been informed that the police officer intends to impose the requirement; and (b) been asked whether it is safe for the person to submit to the breath test, breath analysis or blood-sampling (or a question to that effect); and (c) indicated, either by an affirmative answer to the question or by raising no objection on medical grounds, that it is safe for the person to submit to the breath test, breath analysis or blood-sampling. (3) A requirement imposed on the person contrary to this section is void and the results of a breath test, breath analysis or blood-sampling carried out pursuant to that requirement are inadmissible in any proceedings against the person under any Act. (4) This section prevails over any section of Part 2 or any other section of this Part. (5) In this section – ambulance officer means a person who is providing ambulance services – (a) under the Ambulance Service Act 1982 ; or (b) on an honorary or volunteer basis. 28. Blood-sampling may be required even if breath test or analy