MARINE SAFETY ACT 1998 - SCHEDULE 1A

MARINE SAFETY ACT 1998 - SCHEDULE 1A

SCHEDULE 1A – Camera recorded offences

Part 1 - Interpretation

(Section 126A)

1 Interpretation

(1) In this Schedule--


"approved enforcement device" means a device of a type (or a combination of types of devices) approved under clause 2.


"camera device" means a device that is capable of taking photographs (whether or not in the form of digitised, electronic or computer-generated images).


"detectable offence" means any of the following--

(a) a speeding offence,

(b) an offence against section 11, 13, 13A or 51,

(c) an offence against clause 11 (2), 40, 51, 52 or 125 of the Marine Safety Regulation 2016 ,

(d) an offence against section 85A of the Ports and Maritime Administration Act 1995 ,

(e) any other offence prescribed by the regulations.

"speeding offence" means an offence against section 11 or any other provision prescribed by the regulations where the speed limit is alleged to have been exceeded.

(2) In this Schedule, a reference to a photograph includes reference to a video recording and a reference to a photograph taken includes a reference to the making of a video recording.

(3) The regulations may amend the definition of
"detectable offence" in subclause (1) by inserting, altering or omitting anything in that definition.

Part 2 - Approval of enforcement devices and areas

2 Approval of devices by Governor

(1) The Governor may, by order published in the Gazette, approve types of devices (or combinations of types of devices) as being designed for any one or more of the following uses--

(a) measuring the speed at which a vessel is travelling (whether or not the vessel concerned is also photographed),

(b) photographing or recording a vessel that is operated in excess of a speed limit applicable in any waters,

(c) photographing or recording a vessel that is operated in contravention of a detectable offence.

Note : The Governor may amend, rescind, revoke or repeal an order made under this clause. See section 43 of the Interpretation Act 1987 and the definition of
"repeal" in that Act.

(2) A camera device may not be approved for use under this clause unless the device is capable of recording the following information on or with any photograph taken by the device--

(a) the date on which the photograph is taken,

(b) the time and location at which the photograph is taken,

(c) in the case of a device that photographs a vessel that is operated in excess of the speed limit at a particular point, the speed limit that applies in the waters at which the photograph is taken,

(d) such other information as may be prescribed by the regulations (whether generally or for a specified kind of device or enforcement use).

(3) The Minister may not recommend the making of an order by the Governor under this clause approving the use of a device for measuring the speed at which a vessel is travelling without the concurrence of the Attorney General.

3 Approval of areas by Minister

(1) The Minister may, by order published in the Gazette, approve areas in which approved enforcement devices may be used.

Note : The Minister may amend, rescind, revoke or repeal an order made under this clause. See section 43 of the Interpretation Act 1987 and the definition of
"repeal" in that Act.

(2) An approved enforcement device may not be approved for use in an area unless the Minister believes there is significant non-compliance with marine legislation in the area.

(3) Parts 3 and 4 of this Schedule apply only in respect of approved enforcement devices located in an area approved under this clause.

Part 3 - Use of evidence obtained from approved enforcement devices

4 Definitions

(1) In this Part--


"appropriate inspection officer" means--

(a) in relation to an approved enforcement device that measures the speed at which a vessel is travelling but is not used in conjunction with, or as part of, a digital camera device--

(i) an authorised officer, or

(ii) a person authorised by the Commissioner of Police or Transport for NSW to test a device of that kind, or

(b) in relation to any other kind of approved enforcement device--a person (or a person belonging to a class of persons) authorised by the Commissioner of Police or Transport for NSW to install and inspect devices of the kind concerned.

"digital camera device" means a camera device that is capable of recording photographs in the form of digitised, electronic or computer-generated images.

(2) For the purposes of this Schedule--

(a) an approved enforcement device is
"approved for excess speed imaging" if it is approved under clause 2 for the use referred to in clause 2 (1) (b), and

(b) an approved enforcement device is
"approved for speed measurement" if it is approved under clause 2 for the use referred to in clause 2 (1) (a).

5 Evidence of speed recorded by speed measurement devices

Evidence may be given in proceedings for a speeding offence of a measurement of speed obtained and recorded by an approved enforcement device that is approved for speed measurement.

6 Certificates concerning reliability of speed measurement devices

In proceedings for a speeding offence in which evidence is given of a measurement of speed obtained from an approved enforcement device that is approved for speed measurement, a certificate purporting to be signed by an appropriate inspection officer for the device certifying the following matters is admissible and is prima facie evidence of those matters--

(a) that the device is an approved enforcement device that is approved for speed measurement,

(b) that on a day specified in the certificate (being within the period prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate inspection officer for the device,

(c) that on that day the device was accurate and operating properly.

7 Admissibility of photographs taken by devices--generally

(1) In proceedings for a detectable offence, any one or more photographs that are tendered in evidence on any of the following bases are admissible in the proceedings--

(a) in the case of proceedings for a speeding offence detected by a device approved under clause 2 (1) (b)--a photograph that is tendered as--

(i) being taken by an approved enforcement device that is approved for excess speed imaging on a day and at a location specified on the photograph, and

(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the regulations,

(b) in the case of proceedings for any other detectable offence (including any speeding offence detected by a device approved under clause 2 (1) (c))--a photograph that is tendered as--

(i) being taken by means of the operation, on a day specified on the photograph, of an approved enforcement device that is approved for the particular detectable offence at a location specified on the photograph, and

(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the regulations.

(2) If one or more photographs are tendered in evidence as referred to in subclause (1), a certificate purporting to be signed by an appropriate inspection officer in relation to the approved enforcement device concerned that certifies the following matters is also to be tendered in evidence--

(a) that the person is an appropriate inspection officer in relation to the device,

(b) that on a day and at a time specified in the certificate (being within the period prescribed by the regulations, whether for a specified kind of device or generally, before the time recorded on the photograph or the earliest photograph as the time at which that photograph was taken), the person carried out the inspection specified in the certificate on the approved enforcement device by means of which the photograph was taken,

(c) that on that inspection the device was found to be operating correctly.

(3) If a photograph is tendered in evidence in proceedings for a speeding offence detected by a device approved under clause 2 (1) (b) and involving a vessel, a certificate referred to in clause 6 concerning the accuracy and reliability of the device used to measure the speed at which the vessel was travelling must also be tendered along with the certificate required by subclause (2) in relation to the camera device that took the photograph.

(4) A photograph tendered in evidence as referred to in subclause (1)--

(a) is to be presumed to have been taken by the approved enforcement device concerned unless evidence sufficient to raise doubt that it was so taken is adduced, and

(b) if it is tendered on the basis that it bears a security indicator--is to be presumed to bear such a security indicator unless evidence that is sufficient to raise doubt that it does so is adduced, and

(c) is prima facie evidence of the matters shown or recorded on the photograph.

(5) Evidence that a photograph tendered in evidence as referred to in subclause (1) bears a security indicator of a kind prescribed by the regulations is prima facie evidence that the photograph has not been altered since it was taken.

8 Evidence of accuracy and reliability not required if certificate tendered

If a certificate under this Part is tendered in proceedings for a detectable offence, evidence--

(a) of the accuracy or reliability of the approved enforcement device concerned, or

(b) as to whether or not the device operated correctly or operates correctly (generally or at a particular time or date or during a particular period),

9 Rebuttal of evidence concerning operation of approved enforcement devices

(1) This clause applies to the determination of whether evidence is sufficient to rebut prima facie evidence or a presumption, or to raise doubt about a matter, as referred to in clause 6, 7 or 8 and for the purposes of proceedings to which those clauses apply.

(2) An assertion that contradicts or challenges--

(a) the accuracy or reliability, or the correct or proper operation, of an approved enforcement device, or

(b) the accuracy or reliability of information (including a photograph) derived from such a device,

is capable of being sufficient, in proceedings to which this clause applies, to rebut such evidence or such a presumption, or to raise such doubt, only if it is evidence adduced from a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience).

Part 4 - Liability for camera recorded offences

10 Definitions

In this Part--


"camera recorded offence" means any of the following--

(a) a speeding offence in respect of which the penalty notice or the court attendance notice indicates that the offence was detected by the approved enforcement device for the offence,

(b) a detectable offence in respect of which the penalty notice or the court attendance notice indicates that the offence was detected by an approved enforcement device for the offence.

(a) in relation to proceedings for an offence commenced in the Local Court--a court attendance notice within the meaning of the Criminal Procedure Act 1986 issued in respect of the person alleged to have committed the offence, and

(b) in relation to proceedings for an offence commenced in the Supreme Court in its summary jurisdiction--an application for an order under section 246 of the Criminal Procedure Act 1986 in respect of the person alleged to have committed the offence.

(a) in the case of a responsible person served with a penalty notice in relation to a camera recorded offence--an approved nomination document under clause 15 (1), or

(b) in the case of a responsible person served with a court attendance notice in relation to a camera recorded offence--a statutory declaration.

(a) the owner of the vessel, except where the vessel has been disposed of by that owner,

(b) if the vessel has been disposed of by a previous owner--a person who has acquired the vessel from the operator,

(c) a person who has a legal right to possession of the vessel (including any person who has the use of the vessel under a lease or hire-purchase agreement, but not the lessor while the vessel is being leased under any such agreement),

(d) any other person (or class of persons) prescribed by the regulations for the purposes of this definition.

11 Responsible person for vessel taken to have committed camera recorded offences

If a camera recorded offence occurs in relation to any vessel, the person who at the time of the occurrence of the offence is the responsible person for the vessel is taken to be guilty of an offence against the provision concerned in all respects as if the responsible person were the actual offender guilty of the camera recorded offence unless--

(a) in any case where the offence is dealt with under section 126--the person satisfies the law enforcement officer under section 126 that--

(i) the vessel was at the relevant time a stolen vessel or a vessel illegally taken or used, or

(ii) the actual offender would have a defence to any prosecution for the camera recorded offence brought against the offender, or

(b) in any other case--the person proves to the satisfaction of the court hearing the proceedings for the offence that--

(i) the vessel was at the relevant time a stolen vessel or a vessel illegally taken or used, or

(ii) the actual offender would have a defence to any prosecution for the camera recorded offence brought against the offender.

12 Duty to inform if person not operator of vessel committing camera recorded offence

(1) A person who--

(a) is served with a penalty notice or a court attendance notice in respect of a camera recorded offence, and

(b) was not the operator of the vessel to which the offence relates at the time the offence occurred,

must, within 21 days after service of the notice, supply by relevant nomination document to the law enforcement officer under section 126 (in the case of a penalty notice) or the prosecutor (in the case of a court attendance notice) the name and address of the person operating the vessel at the time the offence occurred.

(2) For the purposes of this clause, it is presumed that a penalty notice served on a person by post is served on the person 7 days after it is posted, unless the person establishes that it was not received by the person, or was not received by the person within the 7-day period.

(3) Despite any other provision of this Act, a relevant nomination document may be provided by a person served with a penalty notice for a camera recorded offence within 90 days of the notice being served on the person if the relevant nomination document is provided in the circumstances specified in section 23AA or 23AB of the Fines Act 1996 .

13 When responsible person for vessel not liable for camera recorded offence

Despite clause 11, the responsible person for a vessel who is served with a penalty notice or a court attendance notice in respect of a camera recorded offence is not guilty of that offence by operation of that clause if the person--

(a) complies with clause 12 in relation to the offence, or

(b) satisfies the law enforcement officer (in the case of a penalty notice) or the court (in the case of a court attendance notice) that the responsible person did not know and could not with reasonable diligence have ascertained the name and address of the person who was operating the vessel at the time the offence occurred.

14 Offences relating to nominations

(1) Offence--failure to comply with clause 12 A person must comply with clause 12 unless the person satisfies--

(a) in the case of a penalty notice--the law enforcement officer, or

(b) in the case of a court attendance notice--the court dealing with the camera recorded offence, or

(c) in either case--the court dealing with the offence of failing to comply with clause 12,

that the person did not know and could not with reasonable diligence have ascertained that name and address.

: Maximum penalty--50 penalty units.

(2) Offence--false nomination of person operating vessel A person must not, in a relevant nomination document supplied under clause 12, falsely nominate another person as the person who was operating the vessel at the time the offence occurred.

: Maximum penalty--100 penalty units.

(3) A person falsely nominates another person as the person operating a vessel for the purposes of subclause (2) if either a false name or address (or both a false name and address) for the other person is supplied in a relevant nomination document.

15 Nominations by responsible persons

(1) Transport for NSW may approve one or more documents (
"approved nomination documents" ) for use by responsible persons when nominating other persons under this clause as persons operating vessels for which they are the responsible persons.

(2) Without limiting subclause (1), Transport for NSW may approve documents under that subclause to be provided in printed or electronic form (or both).

(3) If a responsible person for a vessel supplies an approved nomination document to a law enforcement officer for the purposes of clause 12, a law enforcement officer may, by written notice served on the person (a
"verification notice" ), require the person to supply a statutory declaration for use in court proceedings that verifies such of the nominations contained in the approved nomination document as are specified in the verification notice.

(4) A person served with a verification notice must supply the required statutory declaration within the period specified in the notice (being a period of not less than 7 days after the date of service).

: Maximum penalty--50 penalty units.

16 Use of statutory declarations as evidence

(1) A statutory declaration supplied for the purposes of clause 12 or 15 (3), if produced in any proceedings against the person named in the declaration and in respect of the camera recorded offence concerned, is admissible and is prima facie evidence that the person was the operator of the vessel at the time the offence occurred.

(2) A statutory declaration that relates to more than one camera recorded offence does not constitute a statutory declaration under, or for the purposes of, clause 12 or 15 (3) unless each of the offences is a camera recorded offence detected by the same camera device at approximately the same time.

(3) A court or law enforcement officer may have regard to a statutory declaration that is provided by a person in deciding, for the purposes of clause 12 or 14 (1), whether the person did not know and could not with reasonable diligence have ascertained the name and address of the person operating the vessel.

(4) If a statutory declaration is provided by a person under subclause (3), it must include the matters (if any) prescribed by the regulations.

17 Further identity information from nomination information provider

(1) A law enforcement officer or prosecutor to whom a relevant nomination document is supplied for the purposes of clause 12 may, by written notice served on the nomination information provider, require the provider to do one or both of the following--

(a) provide such relevant identity information that is in the provider's power to provide (including, if so required, by means of a written statement signed by the provider), as may be specified in the notice, within the period specified in the notice,

(b) appear before the law enforcement officer or prosecutor at a specified time and place and provide (either orally or in writing) such relevant identity information that is in the provider's power to provide as may be specified in the notice.

(2) The period or time specified in a notice under subclause (1) for information to be provided, or an appearance to be made, must be no earlier than 7 days after the date of service of the notice.

(3) A person served with a notice under subclause (1) must not, without lawful or reasonable excuse, refuse or fail to comply with the notice.

: Maximum penalty--20 penalty units.

(4) In this clause--


"nomination information provider" , in relation to a relevant nomination document, means--

(a) in the case of a document supplied by a responsible person for the vessel concerned who is a natural person--the person who supplies the document, or

(b) in the case of a document supplied by a responsible person for the vessel concerned that is a corporation--a person who prepares or supplies the document on behalf of the corporation.

"relevant identity information" means any information that may assist in confirming or establishing the identity of the person operating the vessel when a camera recorded offence to which a relevant nomination document relates was committed.

18 Liability of actual offender unaffected

(1) Nothing in this Part affects the liability of the actual offender.

(2) However, if a penalty has been imposed on or recovered from any person in relation to any camera recorded offence, no further penalty may be imposed on or recovered from any other person in relation to the offence.

19 Interfering with an approved enforcement device

A person who interferes with, damages or destroys an approved enforcement device is guilty of an offence.

: Maximum penalty--100 penalty units.

20 Part does not derogate from any other law

The provisions of this Part are in addition to, and not in derogation of, any other provisions of this or any other Act.