New South Wales Consolidated Acts

MARITIME SERVICES ACT 1935 - SECT 38

38 Regulations

(1) The Governor may make regulations not inconsistent with this Act or with any other Act with the administration of which the Board is charged:

(a) in relation to any authority, duty, function, obligation or power conferred or imposed on the Board,

(b) in relation to any land vested in the Board or any matter or thing over which the Board has control or the general superintendence,

(c) prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, the Sydney Harbour Trust Act 1900 or the Port Rates Act 1975 .

(2) In particular and without limiting the generality of the foregoing power the Governor may make regulations for or in relation to:

(a) the marking, sorting, stacking, loading, unloading, delivery and the handling generally of cargo and goods in any port or on any wharf or on any land vested in the Board or under its control or management,

(ai) the removal of such cargo or goods by the owner thereof, or by the owner of a vessel who has received such cargo or goods for shipment on that vessel, from such port, wharf or land, the removal by the Board of any such cargo or goods or any class thereof to any other place vested in or controlled by the Board, or the depositing of the same by the Board in any bond or store, the imposition in respect of any cargo or goods or any class thereof not removed by the owner thereof, or by the owner of a vessel who has received such cargo or goods for shipment on that vessel, from any such port, wharf or land within any time or times specified in the regulations of charges either general in application or specifically applying to particular classes of cargo or goods, particular wharves or areas or particular times or calculated by reference to the average dimensions or weight of any separate portions of any cargo or goods or by reference to such method as may be prescribed by the regulations, and the recovery by the Board of the costs and expenses incurred in the removal of any such cargo or goods and in cleansing or reinstating any wharf or land affected by such cargo or goods,

(aii) the imposition, in respect of vessels which enter or leave any port or ports or which are berthed at any installation or any class or classes of installations in any port or ports, of passenger rates calculated by reference to any one or more of the following, namely, the number of passengers carried, embarked, or disembarked on, on to or from any such vessel, the voyage or class of voyage made or to be made, the class of accommodation provided, the passage money charged, or any other circumstances specified in the regulations,

(b) controlling and regulating the occupation of navigable waters by structures or floating objects or apparatus or by vessels occupying navigable waters for the purpose other than the normal incidents of a voyage, and the use of moorings,

(c) notwithstanding anything contained in section 86 of the Sydney Harbour Trust Act 1900 , the prevention, prohibition or regulation, whether by the adoption of standards or otherwise, of the doing or continuance, in or on any waters or lands vested in or controlled by the Board or in the vicinity thereof, of anything likely to cause the pollution of the navigable waters lying within one nautical league of the coast or the inland navigable waters of New South Wales or the foreshores or shores of any such navigable waters or inland navigable waters, or any portion of such navigable waters, inland navigable waters, foreshores or shores,

(d) the management, control or development of any port or wharf or any land vested in the Board or under its control or management,

(e) controlling and regulating the use of any portion of the bed, foreshores, or shores of any port,

(ei) prohibiting or regulating on, or in connection with, any vessel, floating object, apparatus or structure in any navigable waters, the carrying on of any activity or operation, or the installation or use of any fitting, equipment or machine, which may cause annoyance, nuisance, injury or danger to any person, damage or risk of damage to any property or pollution of navigable waters, or which involves the emission of noise, smoke, dust, cinders, solid particles of any kind, gases, fumes, mist, odours, radio-activity or radio-active substances,

(eii) prescribing equipment to be installed to prevent or limit any emission referred to in paragraph (ei),

(f) generally controlling and regulating the navigation, use and equipment of vessels in the navigable waters of New South Wales and, without limiting the generality of the foregoing:

(i) the proper, safe, and efficient conduct of navigation and of maritime and aquatic activities,

(ii) preventing interference by or in the use of any vessel with the operation or use of any other vessel,

(iii) preventing the operation or use of any vessel in a manner that may cause annoyance, nuisance, injury or danger to any person or damage or risk of damage to any property, and

(iv) preventing or limiting the emission from vessels of noise, smoke, dust, cinders, solid particles of any kind, gases, fumes, mist, odours, radio-activity or radio-active substances, prescribing the equipment to be installed in vessels to prevent or limit any such emission, and preventing or regulating the use, movement or operation of vessels in such manner as may cause, increase, or render more serious the effect of, any such emission,

(fi) the issue by the Board and the use and return to the Board of special plates for attachment to vessels, the conditions subject to which any such plates may be issued or used, the fees payable in respect of any such plates, the exemption of the owner or master of any vessel to which any such plate is attached from such of the provisions of any Act, by-law, regulation or rule with the administration of which the Board is charged as may be specified in the regulations made under this paragraph or in any conditions subject to which any such plates may be issued or used, and the imposition of penalties not exceeding 4 penalty units for any breach of any regulation made under this paragraph or of any condition subject to which any plate may be used,

(g) the commencement, carrying-out, completion and control generally of all work connected with the cutting-down, demolition, destruction and removal of any vessel or structure in any port and the imposition of fees in relation to any such work; the removal by any means whatsoever of derelicts, impediments, obstructions, nuisances, wrecks and the like,

(h) the precautionary or safety measures to be taken and the control generally of all matters relating to the conveying, loading, unloading, delivery and the handling generally of explosives in any port,

(i) the control, regulation and management generally of all matters relating to vessels in any port and to vehicles of any description and their drivers on any wharf or on any property vested in the Board or under its management or control,

(j) the licensing of porters and prescribing their duties,

(k) controlling and regulating the use of any vehicle or machine of any description operating on any wharf or on any property vested in the Board or under its management or control,

(l) the payment of fees to assessors engaged in a court of marine inquiry,

(m) the keeping and using, by persons concerned with the marking, sorting, stacking, loading, unloading, delivery and the handling generally of cargo or goods in any port or on any wharf or land vested in or controlled by the Board, of records and forms relating to such operations, providing for inspection of such records and forms by or on behalf of the Board, providing for the furnishing of such records and forms, or copies or extracts thereof, for use in any legal proceedings instituted by the Board or by its direction,

(n) prohibiting or regulating on any vessel, or on any land or in any building vested in or controlled by the Board, the carrying on of operations involving risk of fire, explosion or other damage to persons or property or any danger to health, and prohibiting the entry to any port or place, and in general controlling the movements, of vessels which for any reason constitute such a risk or danger,

(ni) the carriage and use by a vessel within a port of equipment and apparatus for the receipt or despatch of messages or signals or for the purpose of indicating, by the emission or reflection of signals or otherwise, the location and movements of such vessel,

(o) the conduct of persons using or being upon or in any land, wharf, depot, shed, warehouse or other place vested in or controlled by the Board, the prevention of the improper use of the same and of objectionable or dangerous conduct thereon or therein, and the prevention of damage or injury to any such land, wharf, depot, shed, warehouse or place, or to any goods, cargo, plant, machinery, vehicles or things, or to other persons, thereon or therein,

(p) prohibiting or regulating the presence of, or any specified activity of, persons:

(i) in any navigable waters in the vicinity of or within a prescribed distance of any moored, anchored, sunken or stranded vessel, or

(ii) in or on, or on land adjacent to, any navigable waters or any lands vested in or controlled by the Board, in the vicinity of or within a prescribed distance of any wharf or installation which is used for the shipment or unshipment of cargo, any installation used for the construction, repair or refitting of vessels, any depot, shed, warehouse or area used for the storage, handling or safe keeping of cargo, goods, vehicles, plant, equipment or materials, or any site on which construction work is being carried out by the Board or any public authority,

(q) subject to subsection (3A), describing the boundaries of any port or area of water.

(2A) Without limiting the generality of any other provision of this section, the power of the Governor to make regulations under this section includes power to make regulations for or with respect to:

(a) the erection by the Board of signs and notices for the purpose of prohibiting or regulating the movement, standing, waiting or parking of vehicles on any wharf or property vested in the Board or under its control or management and the imposing of penalties not exceeding 2 penalty units for any failure to comply with any such sign or notice,

(b) the installation by the Board of parking meters on any such wharf or property for the purpose of regulating the standing, waiting or parking of vehicles in any place on any such wharf or property and the operation and protection from damage of any parking meters so installed,

(c) the demanding, recovery or collection by the Board of such charges or fees as may be fixed by the Board in respect of any vehicle standing, waiting or parked in any place on any such wharf or property where the regulations require the payment of such fees or charges in respect of vehicles standing, waiting or parked in that place,

(d) the prohibition or regulation of the entry of vehicles on to, and the movement of vehicles on, any such wharf or property,

(e) the production, by the driver of any vehicle on any such wharf or property to a member of the police force or a person appointed by the Secretary of the Board, of any licence required by law to be held by the driver as the driver of that vehicle,

(f) the making or display by vessels of prescribed signals or lights, and the manner of navigation of other vessels when such signals or lights are made or displayed by a vessel,

(g) the erection by the Board of signs and notices for the purpose of prohibiting or regulating the navigation of vessels, or the use of vessels for a purpose or purposes or otherwise than for a purpose or purposes stated in such sign or notice, or the mooring or anchoring of vessels, or of vessels of a specified class or classes, or of vessels other than vessels of a specified class or classes, stated in such sign or notice, in any area of navigable waters and the imposing of penalties not exceeding 2 penalty units for any failure to comply with any such sign or notice,

(h) the erection by the Board of signs and notices for the purpose of prohibiting or regulating the presence of persons, or of persons of a class or classes or of persons other than of a class or classes stated in any such sign or notice, on or in any land, wharf, building or structure vested in the Board or under its control or management, or the use by persons of any such land, wharf, building or structure for a purpose or purposes or otherwise than for a purpose or purposes stated in such sign or notice, and the imposing of penalties not exceeding 2 penalty units for any failure to comply with any such sign or notice,

(i) the giving by the Board, or a servant of the Board, of a notice to any person for the purpose of preventing, prohibiting or regulating, either absolutely or conditionally, the carrying on or continuance of any activity, operation, installation, use or emission referred to in paragraph (ei) or (f) of subsection (2), the investigation, by such persons in such manner and circumstances as may be prescribed, as to whether a notice should continue in force, the imposing of penalties not exceeding 4 penalty units for any failure to comply with any such notice, and the payment of fees and charges for or in connection with any such investigation.

(2B) Without limiting the generality of any other provision of this section, the Governor may, make regulations for and with respect to the safety of persons who operate, use, or are carried in, a vessel (not being a vessel engaged in the coasting trade) which is in, or has gone to sea from, any navigable waters within, or within one nautical league from the coast of, New South Wales including, without limiting the generality of the foregoing, regulations relating to:

(a) the design and construction of vessels,

(b) the carriage in a vessel of equipment for the safe and proper navigation and use of the vessel,

(c) the carriage in a vessel of life-saving equipment and apparatus, and of means of making distress signals,

(d) the carriage in a vessel of equipment for facilitating rescue,

(e) the use to be made of prescribed equipment carried on a vessel,

(f) the making or display by vessels of prescribed signals or lights, and use of a vessel and its equipment.

(3) A regulation may:

(a) be of general or specially limited application according to time, place or circumstances, and may be general or restricted to any specified class of subject matter or restricted to all subject matter other than subject matter of a specified class or specified classes,

(b) provide for the issue, making, revocation, cancellation or suspension of licences, registration certificates or permits to or with respect to persons and property and for the payment of licence, registration and permit fees,

(c) provide for the payment of fees for inspections and other services rendered by officers and employees of the Board,

(d)

(i) where the regulation is made under paragraph (c) of subsection (2) for the purpose of preventing, prohibiting or regulating the doing or continuance of anything likely to cause any such pollution as is referred to in that paragraph by dangerous goods or volatile or furnace or lubricating oil, or liquid derived from petroleum, shale or coal, impose a penalty not exceeding 20 penalty units for any breach thereof,

(ii) in any other case, impose a penalty not exceeding 15 penalty units for any breach thereof,

(e) fix a minimum as well as a maximum penalty, and impose a daily penalty for any continuing breach thereof not exceeding 1 penalty unit per day,

(f) provide that any costs or expenses incurred by the Board or the Crown as a result of the breach thereof may be recovered in any court of competent jurisdiction from the person convicted of such breach,

(g) make both the owner and the master of any vessel liable for any breach of any such regulation committed from or in the use of such vessel,

(h) provide that any licence, registration certificate or permit therein referred to may be issued, or any consent or approval therein referred to may be given, upon any conditions deemed appropriate by the Board, that any such condition may be varied or revoked, and that a breach of any such condition shall constitute a breach of such regulation.

(3A) Where the boundaries of a port are described by a regulation made pursuant to subsection (2) (q), the boundaries of the port as so described may include an area of water adjacent to the entrance to the port.

(4) In this section:
"dangerous goods" has the same meaning as in the Dangerous Goods (Road and Rail Transport) Act 2008 .
"mooring" means the whole of the apparatus used to secure a vessel in any navigable waters for any purpose other than the normal incidents of a voyage, whether or not such apparatus or any part thereof is itself beyond the shores of such waters, and whether or not such apparatus, or any part thereof, is, has been, or is proposed to be used by the same or any other person for any other purpose, and any apparatus or group thereof used to secure more than one vessel shall constitute as many moorings as there are vessels so secured, but does not include the gear or equipment of a vessel by which such vessel is so secured.
"wharf" means any wharf, dock, pier, jetty, landing-stage, slip or platform vested in the Crown or the Board and includes any depot, shed, building or structure erected thereon or forming part thereof or used in connection therewith and any land vested in the Crown or the Board adjoining or adjacent to any wharf as hereinbefore defined and used in connection therewith, but does not include any wharf as hereinbefore defined the control and management of which is vested in a council within the meaning of the Local Government Act 1993 .

(4A)

(a) If it appears to the Board, on the application of any person affected by any regulation or part thereof, that compliance with that regulation or part is impracticable or unnecessary, the Board may direct that compliance with that regulation or part may be dispensed with, and may, by the same direction, direct that some other requirement be substituted for the requirement of the regulation or part thereof.

(b) A breach of any requirement directed by the Board to be substituted for any regulation or part of a regulation specified in the direction shall be deemed to be a breach of that regulation.

(c) Any direction under this subsection may be given under the hand of any officer or employee of the Board appointed by the Board in that behalf.

(5) A power to make a regulation under this section in respect of anything vested in or controlled by the Board includes such a power in respect of anything vested in or controlled by a Port Corporation or the Authority within the meaning of the Ports and Maritime Administration Act 1995 .

(6) A regulation made by the Maritime Services Board under this section and in force immediately before the commencement of this subsection is taken to have been made by the Governor.