Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Marine Safety Act 1998 (the Principal Act):

(a) to increase penalties for certain offences relating to the negligent and
dangerous operation of vessels, and

(b) to create new offences with increased penalties for operating a vessel while
disqualified from doing so, and

(c) to confer on authorised officers (who include police officers) a direction power
in relation to conduct affecting the safety of persons and property in, on or near
navigable waters, and

(d) to ensure that, as far as is practicable, the provisions of that Act relating to the
operation of vessels while having the prescribed concentration of alcohol in
the breath or blood or being under the influence of alcohol or a drug, and the
random breath testing of the operators of vessels, are in line with provisions
relating to those matters in respect of vehicles under the road legislation, and

(e) to require certain commercial vessels that are not required to have a survey
certificate to comply with other prescribed standards in relation to their design,
construction and equipment, and

---

Explanatory note page 2

Marine Safety Amendment Bill 2008
Explanatory note

(f) to make further provision in relation to the pilotage of vessels and the
appointment and functions of harbour masters, and

(g) to make further provision for the regulation by the Minister of public ferry
wharves, and

(h) to facilitate the application of the National Standard for Commercial Vessels
of the Commonwealth (the National Standard), and
        (i) to facilitate the introduction in the State of uniform provisions relating to
builders plates for recreational vessels, and

(j) in miscellaneous respects to further improve the licensing, administration and
enforcement provisions of that Act.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Marine
Safety Act 1998 set out in Schedule 1.

Clause 4 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendments
Amendments relating to increased penalties, new offences and
enforcement provisions
Schedule 1 [6] amends section 11 of the Principal Act to increase the penalty for the
creation of wash in contravention of a notice displayed in accordance with the
section.

Schedule 1 [8] substitutes section 13 of the Principal Act to increase the penalties for
operating a vessel negligently, recklessly or at a speed or in a manner dangerous to
the public. The new section introduces the possibility of imprisonment in situations
where the conduct in question occasioned death or grievous bodily harm. The new
section also provides increased maximum monetary penalties in a case where the
vessel concerned was a seagoing ship (being a vessel over 45.72 metres in length and
carrying cargo or passengers and normally operating between ports) and lesser
increased penalties in the case of other commercial vessels. Schedule 1 [62] makes
a consequential amendment.

Schedule 1 [9] inserts section 15A into the Principal Act to enable an authorised
officer to give a direction to a person in, on or near navigable waters if necessary to

---

Explanatory note page 3

Marine Safety Amendment Bill 2008
Explanatory note
ensure the safety of any person, or prevent damage to any property, in, on or near
navigable waters.

Schedule 1 [21] amends the definition of unsafe vessel in section 44 of the Principal
Act to provide that a vessel is unsafe if for any reason the operation of the vessel is
likely to endanger any person. At present, the definition provides that for a vessel to
be unsafe the operation of the vessel must be a danger to human life.

Schedule 1 [22] amends section 45 of the Principal Act to make it an offence for the
owner or master of a vessel to operate it if he or she ought reasonably to know that it
is unsafe. Currently, section 45 requires the prosecution to prove that the owner or
master actually knew that the vessel was unsafe. The amendment also increases the
monetary penalty for offences under the section.

Schedule 1 [24] amends section 51 of the Principal Act to increase the penalty for
operating a vessel that is required to be registered if it is unregistered from 50 penalty
units (currently $5,500) to 75 penalty units (currently $8,250).

Schedule 1 [32] inserts proposed section 59A into the Principal Act to provide a
specific offence of operating a commercial vessel while disqualified from holding or
obtaining a certificate of competency under that Act. The proposed section also
makes it an offence to make an application for such a certificate in a false name
during any such period of disqualification. The maximum penalties are higher for
second and subsequent offences.

Schedule 1 [34] substitutes section 63 of the Principal Act to make it clear that it is
an offence for a person to operate certain recreational vessels unless the person holds
a boat driving licence of a type that authorises the operation of such a vessel.

Schedule 1 [35] inserts proposed section 63A into the Principal Act to provide a
specific offence of operating certain recreational vessels while disqualified from
holding or obtaining a boat driving licence under the Act. The proposed section also
makes it an offence to make an application for such a licence in a false name during
any such period of disqualification. The maximum penalties are higher for second
and subsequent offences.

Schedule 1 [38] substitutes section 67 of the Principal Act to make it clear that the
regulation-making power in that section dealing with the installation or carriage on
vessels of safety equipment extends to enabling the making of regulations with
respect to the wearing of safety equipment by persons on vessels or engaged in
marine activities.

Schedule 1 [52] inserts proposed section 97A into the Principal Act which makes it
an offence to obstruct an authorised officer or other person in the exercise of
functions under the Act. Schedule 1 [55] amends section 125 of the Principal Act to
remove a similar offence applying only to the exercise of functions under Division 4
(Investigative powers of authorised officers) of Part 8 of that Act.

---

Explanatory note page 4

Marine Safety Amendment Bill 2008
Explanatory note
Amendments relating to marine safety licences
Schedule 1 [17] amends section 37 of the Principal Act to make it clear that the
regulations may require the holding of a marine safety licence for activities that may
be regulated under the Act.

Schedule 1 [18] amends section 37 of the Principal Act to enable regulations to be
made with respect to fees and charges for inspections in connection with marine
safety licences and with respect to the suspension and cancellation of marine safety
licences and the disqualification of persons from holding or obtaining such licences.

Schedule 1 [15] omits section 34 consequentially as that section deals with the
setting of fees for applications for marine safety licences.

Schedule 1 [19] substitutes section 38 of the Principal Act to enable the Minister to
disqualify a person from holding a marine safety licence in certain circumstances.

Schedule 1 [53] amends section 111 of the Principal Act to enable the Minister to
make such a disqualification as a result of the report of an investigator on an
investigation under the Act of a marine accident or other incident.

Schedule 1 [20] amends section 42 of the Principal Act to enable a person to apply
to the Administrative Decisions Tribunal for a review of any limitation imposed on
a marine safety licence, whether or not imposed as a condition of the licence.

Schedule 1 [23] amends section 50 of the Principal Act to extend the provisions
requiring the registration of certain vessels to commercial vessels that are pleasure
craft or that are Australian fishing vessels operating in specified circumstances.

Those vessels are currently generally excluded from the operation of the Navigation
Act 1912 of the Commonwealth. Schedule 1 [1] amends the definition of Australian
fishing vessel in section 4 of the Principal Act to include fishing fleet support vessels
within the meaning of the Navigation Act 1912 of the Commonwealth as those
vessels are also generally excluded from the operation of that Act. Schedule 1 [3]
inserts a definition of pleasure craft into section 4 of the Principal Act.

Schedule 1 [26] substitutes section 53 of the Principal Act and inserts proposed
section 53A.

New section 53 extends the operation of Division 3 of Part 5 of the Principal Act,
which deals with survey certificates and design and construction standards for
commercial vessels, to commercial vessels that are Australian fishing vessels or
pleasure craft while operating outside State waters. The new section also removes the
provision that limits the application of the Division to vessels that are required to be
registered. Schedule 1 [28] makes a consequential amendment.

Proposed section 53A replaces the current requirements in section 53 that the owner
and master of a commercial vessel to which Division 3 of Part 5 of the Principal Act
applies must not operate the vessel unless it has a survey certificate. The new
provisions will prohibit the owner or master of such a vessel from operating the
vessel if it does not comply with prescribed requirements as to its design,
construction or equipment and, if the regulations require it to have a survey
certificate, it does not have such a certificate. Schedule 1 [25] makes a consequential
amendment.

---

Explanatory note page 5

Marine Safety Amendment Bill 2008
Explanatory note
Schedule 1 [27] amends section 54 of the Principal Act to remove the requirement
that the Minister needs to be satisfied that a vessel is safe to operate when granting a
survey certificate for the vessel. However, the Minister must still be satisfied that the
vessel complies with the relevant requirements as to design, construction and
equipment.

Schedule 1 [29] omits section 55 of the Principal Act which enables the Minister to
be satisfied that a vessel complies with the relevant design, construction and
equipment requirements and is safe to operate by relying on a certificate from an
appropriately accredited surveyor. Schedule 1 [13] amends section 29 of the
Principal Act to omit a surveyor’s accreditation from the list of marine safety
licences as it is not intended to provide for surveyor’s accreditation at this time.

Schedule 1 [31] amends section 57 of the Principal Act to extend the operation of
Division 4 of Part 5, which deals with requirements for crews of commercial vessels,
to commercial vessels that are Australian fishing vessels or pleasure craft while
operating outside State waters. The amendment also removes the provision that
limits the application of the Division to vessels that are required to be registered.

Schedule 1 [36] and [37] amend section 64 of the Principal Act to make it clear that
the exemption from holding a boat driving licence for a recreational vessel provided
in that section to a visiting boat operator who is licensed in another State or Territory
does not apply if the licence is suspended in that other State or Territory. The
exemption also does not apply if the visiting operator holds a boating licence in New
South Wales that is suspended or is disqualified from holding such a licence.

Amendments relating to alcohol and drug provisions
Schedule 1 [12] substitutes Part 3 of the Principal Act relating to offences of
operating vessels with the prescribed concentration of alcohol in the breath or blood
or while under the influence of alcohol or another drug. The new provisions mirror,
as far as is practicable without changing the prescribed concentrations and the
persons to which they currently apply under the Principal Act, the provisions of the
Road Transport (Safety and Traffic Management) Act 1999 relating to equivalent
offences in connection with the driving of vehicles.

Schedule 1 [76] substitutes Schedule 1 to the Principal Act relating to random breath
testing of the operators of vessels and the procedure for the analysis of breath and
blood samples so as to mirror, as far as is practicable, the provisions of the Road
Transport (Safety and Traffic Management) Act 1999 relating to equivalent matters
in connection with the driving of vehicles.

Amendments relating to pilotage and harbour masters
Schedule 1 [40] substitutes the definition of pilotage in section 71 of the Principal
Act to provide greater clarity as to when a vessel is taken to be under pilotage for the
purposes of the Act.

Schedule 1 [41] amends section 72 of the Principal Act to provide that a person who
is an unlicensed trainee marine pilot does not commit an offence of acting as a marine

---

Explanatory note page 6

Marine Safety Amendment Bill 2008
Explanatory note
pilot if the person is under the direct supervision of an appropriately licensed marine
pilot.

Schedule 1 [42] substitutes section 73 of the Principal Act to clarify the
circumstances in which a person is authorised to act as a marine pilot of a vessel in a
pilotage port.

Schedule 1 [43] amends section 74 of the Principal Act to provide that a vessel
subject to pilotage may be moved without having the pilot on board if the movement
of the vessel is approved by the harbour master and recorded in the vessel’s log.

Schedule 1 [44] amends section 75 of the Principal Act to exempt a vessel from
requiring a pilot if the master of the vessel is the holder of a certificate of local
knowledge under the Act that applies to the port and the vessel concerned. The
amendment merely reflects the exemptions currently provided under section 79 of
the Ports and Maritime Administration Act 1995 for such certificates.

Schedule 1 [14], [16] and [45] make consequential amendments.

Schedule 1 [46] amends section 80 of the Principal Act to make it clear that the
protection of the State and certain others from actions for damages in relation to the
negligence of marine pilots extends to the actions of trainee marine pilots.

Schedule 1 [47] inserts proposed section 81A into the Principal Act to require a
person acting as a marine pilot for a vessel to immediately notify the harbour master
if the master of the vessel is not implementing the person’s orders in relation to the
pilotage of the vessel.

Schedule 1 [48] amends section 83 of the Principal Act to enable the regulations
relating to pilotage and marine pilots’ licences to adopt a document published by the
Minister.

Schedule 1 [49] substitutes section 85 of the Principal Act to enable the Minister to
appoint any person as a harbour master rather than, as is currently the case, a
Departmental officer or a member of staff of a Port Corporation.

Schedule 1 [50] amends section 86 of the Principal Act to enable a harbour master
or the Minister to appoint more than one person to exercise the harbour master’s
functions.

Schedule 1 [51] inserts proposed section 91A into the Principal Act which provides
that a harbour master who is acting as a marine pilot for a vessel must, if giving a
direction as harbour master, indicate that it is such a direction and that failure to
comply may constitute an offence. A failure to comply with a direction of a marine
pilot does not constitute an offence.

Amendments relating to public ferry wharves
Schedule 1 [59] amends section 125C of the Principal Act to enable the Minister to
vary an improvement notice issued in relation to a public ferry wharf at the request
of, or with the consent of, the person to whom it was given.

Schedule 1 [60] amends section 125J of the Principal Act to remove the restriction
that an improvement notice or prohibition notice issued under the Act in relation to
a public ferry wharf may be withdrawn only if it was issued in error or is incorrect.

---

Explanatory note page 7

Marine Safety Amendment Bill 2008
Explanatory note
Schedule 1 [61] inserts proposed sections 125L and 125M into the Principal Act.

Proposed section 125L enables the Minister to require an owner or person
responsible for the maintenance of a public ferry wharf to obtain a report from an
appropriately qualified person as to the condition of the wharf. If the requirement is
not complied with, the Minister may obtain such a report and recover the costs of
doing so.

Proposed section 125M enables regulations to be made in relation to specified
matters concerning public ferry wharves, including the inspection of such wharves
under the Principal Act, the maintenance of such wharves and standards for their
construction.

Schedule 1 [56]–[58] make consequential amendments.

Amendments facilitating adoption of national commercial vessels
provisions
Schedule 1 [4] amends section 4 of the Principal Act to omit an unnecessary
definition of the Uniform Shipping Laws Code.

Schedule 1 [30] substitutes section 56 of the Principal Act which enables the making
of regulations with respect to commercial vessels, including the construction, design,
equipment and survey of those vessels. The new section will enable regulations to
also be made with respect to the manner in which any such matter is to be determined.

Schedule 1 [33] substitutes section 60 of the Principal Act which currently enables
regulations to be made with respect to the minimum crew to be carried in commercial
vessels. The new section will enable the regulations to deal generally with crewing
matters to accommodate different terminology and requirements to be introduced in
the National Standard.

Schedule 1 [71] and [72] amend section 138 of the Principal Act to facilitate the
adoption of the National Standard by the regulations.

Amendments relating to national recreational builders plates
provisions
Schedule 1 [39] inserts proposed section 68A into the Principal Act which enables
regulations to be made in relation to the fixing of builders plates to vessels. The new
provisions will facilitate the implementation of proposed uniform provisions with
respect to this matter throughout Australia.

Miscellaneous amendments
Schedule 1 [2] substitutes the definition of commercial vessel in section 4 of the
Principal Act to make it clear that the definition extends to vessels used or intended
to be used by the Crown.

Schedule 1 [5] substitutes section 9 of the Principal Act to extend specified
provisions of the Act to Defence Force vessels (other than commissioned vessels)
and their crew. Those provisions deal with the safety of navigation, offences relating
to the operation of vessels while having the prescribed concentration of alcohol and

---

Explanatory note page 8

Marine Safety Amendment Bill 2008
Explanatory note
while being under the influence of alcohol or a drug, random breath testing and the
investigative powers of authorised officers. Currently, those vessels and their crew
are exempt from the operation of the Act.

Schedule 1 [7] amends section 12 of the Principal Act to enable notice to be given
of a special event in particular waters in a local newspaper if the Minister approves.

Currently, notice has to be given in a newspaper circulating throughout New South
Wales.

Schedule 1 [10] substitutes the definition of aquatic activity in section 18 of the
Principal Act to extend the definition to races, competitions, exhibitions and other
activities conducted in or on navigable waters whether or not involving vessels or
equipment. Currently, the definition only covers activities involving vessels or
equipment.

Schedule 1 [11] amends section 18 of the Principal Act to enable the Minister when
granting a licence or approval under the Act authorising an aquatic activity to include
exemptions from requirements of the Act or the regulations. Schedule 1 [73] and
[74] make consequential amendments.

Schedule 1 [54] amends section 121 of the Principal Act to enable an authorised
officer to obtain a written statement from the owner of a vessel as to the identity of
the master of the vessel and to obtain such a statement from the master of a vessel as
to the identity of the owner of the vessel.

Schedule 1 [63]–[65] amend section 133 of the Principal Act to facilitate the proof
of certain matters in proceedings for offences.

Schedule 1 [66] and [67] make amendments to the Principal Act by way of statute
law revision.

Schedule 1 [68] inserts proposed section 136A into the Principal Act which enables
the Minister or the Maritime Authority to rely on expert advice when carrying out
functions under the Act.

Schedule 1 [69] amends section 137 of the Principal Act to enable regulations to be
made with respect to fees and charges for services provided under the Act.

Schedule 1 [70] amends section 137 of the Principal Act to include a standard
provision requiring the concurrence of the Minister administering the Administrative
Decisions Tribunal Act 1997 in relation to the making of regulations enabling
applications for review to be made to the Administrative Decisions Tribunal.

Schedule 1 [75] amends section 144 of the Principal Act to extend the review period
of the Act to 5 years after the date of assent to the proposed Act.

Schedule 1 [77]–[79] contain savings and transitional provisions.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]