MARINE SAFETY ACT 1998 - SCHEDULE 4

MARINE SAFETY ACT 1998 - SCHEDULE 4

SCHEDULE 4 – Savings, transitional and other provisions

(Section 143)

Part 1 - Regulations

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--

This Act

Road Transport (Safety and Traffic Management) Amendment (Blood Sampling) Act 2000

Transport Legislation Amendment (Safety and Reliability) Act 2003 (but only to the extent that it amends this Act)

Marine Safety Amendment (Random Breath Testing) Act 2005

Transport Legislation Amendment (Waterfall Rail Inquiry Recommendations) Act 2005 (but only to the extent that it amends this Act)

Marine Safety Amendment Act 2008

any other Act that amends this Act

(2) Any such savings or transitional provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.

(3) To the extent to which any such savings or transitional provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State, a Port Corporation or any authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State, a Port Corporation or any authority of the State) in respect of anything done or omitted to be done before the date of its publication.

(4) The regulations may make provision for or with respect to the following--

(a) providing that a specified provision of this Act or the regulations has no effect until a specified Act or Regulation referred to in Schedule 2, or a specified provision of any such Act or Regulation, is repealed,

(b) construing all references in this Act or the regulations, or specified references, to marine safety licences or a particular type of marine safety licence as meaning, or including a reference to, a licence, permit or other authorisation, or a particular type of licence, permit or other authorisation, issued under an Act or Regulation referred to in Schedule 2.

(c) construing all references in this Act or the regulations, or specified references, to marine safety licences or a particular type of marine safety licence as meaning, or including a reference to, a certificate or other authorisation, or a particular type of certificate or other authorisation, issued under the National law,

(d) continuing on the effect of any specified provision of this Act that has been repealed by the Marine Safety Amendment (Domestic Commercial Vessel National Law Application) Act 2012 and of specified regulations made under any such provision,

(e) any matter of a savings or transitional nature that is consequent on the enactment or operation of the National law.

(5) For the avoidance of doubt, any provision of the regulations made for the purposes of this clause may, if the regulations so provide, have effect despite any specified provision of this Act (including a provision of this Schedule).

Part 2 - Provisions consequent on enactment of this Act

2 Existing speed limit and other notices in navigable waters

Any notice prohibiting or regulating the operation of vessels in navigable waters that was erected under the Maritime Services Act 1935 before the commencement of section 11 of this Act is taken to be a notice displayed by the Minister under that section.

3 Offences under Marine (Boating Safety--Alcohol and Drugs) Act 1991

A reference in Part 3 to a
"major offence" includes a reference to an offence against Part 2 of the Marine (Boating Safety--Alcohol and Drugs) Act 1991 that was committed before the repeal of that Act by this Act.

4 Saving of existing marine safety licences

(1) A registration, licence, certificate or other authority that was in force under an Act or regulation repealed by this Act immediately before its repeal (being an authority of the same type as a marine safety licence under this Act) is taken to have been granted under this Act as a marine safety licence.

(2) If such a licence is a pilot's licence under section 7 of the Marine Pilotage Licensing Act 1971 , the licence is taken to have been granted for a period of 5 years after the repeal of that Act.

(3) This clause is subject to the provisions of this Act and the regulations, including regulations under this Schedule.

(4) For avoidance of doubt, section 33 applies to a registration, licence, certificate or other authority that is taken to have been granted under this Act as a marine safety licence.

5 Saving of appointments of harbour masters

A person who, immediately before the repeal of Part 7 of the Ports and Maritime Administration Act 1995 , was appointed as a harbour master, or to act in the capacity of a harbour master, under that Act is taken to have been so appointed under this Act.

6 Saving of evidentiary provisions

The provisions of section 34 of the Maritime Services Act 1935 (Proof of certain matters not required), as in force immediately before the repeal of that section, continue to apply to any prosecution or proceedings that may be instituted or continued despite the repeal of that Act, or any other Act or regulation, by this Act.

7 Investigations into previous matters

An investigation may be made under Division 3 of Part 8 of this Act into a matter even though the matter occurred before the commencement of that Division.

8 Preservation of exemptions granted under repealed Acts

The regulations under this Schedule may provide that exemptions granted under an Act repealed by this Act from any provision of or made under the repealed Act is taken to be an exemption granted under this Act from a specified requirement of or made under this Act. Any such exemption may be varied or revoked in accordance with this Act.

9 Staged repeal under Subordinate Legislation Act 1989 of regulations to be repealed by this Act

A regulation that is to be repealed by this Act is taken not to be repealed by section 10 of the Subordinate Legislation Act 1989 .

10 General saving

Anything done under an Act or regulation repealed by this Act that has any force or effect immediately before its repeal, is taken to have been done under the corresponding provision of this Act.

Part 3 - Provisions consequent on enactment of Marine Safety Amendment (Random Breath Testing) Act 2005

11 Definition

In this Part--


"repealed Act" means the Marine (Boating Safety--Alcohol and Drugs) Act 1991 .

12 Amendments not to apply to offences occurring before the commencement of amendments

(1) Proceedings for offences committed, or alleged to have been committed, before the commencement of an amendment of a provision by Schedule 1 to the Marine Safety Amendment (Random Breath Testing) Act 2005 are to be determined as if the amendment had not been enacted.

(2) Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had the amendment not been enacted continues to apply to the proceedings as if the amendment had not been enacted.

13 References to and in relation to marine safety licences in sections 27 and 40

(1) A reference in section 27 or 40 to a marine safety licence is taken to include a reference to a licence to which section 10 of the repealed Act applied immediately before its repeal by Schedule 2 to this Act.

(2) A reference in section 27--

(a) to the cancellation or suspension of a marine safety licence is taken to include a reference to the withdrawal of recognition of a recognised licence (within the meaning of section 10 of the repealed Act), and

(b) to the disqualification of the holder of a marine safety licence is taken to include a reference to the disqualification of the person from having a recognised licence recognised.

Part 4 - Provisions consequent on enactment of Marine Safety Amendment Act 2008

14 Definitions

In this clause--


"amending Act" means the Marine Safety Amendment Act 2008 .

15 Amendments not to apply to offences occurring before the commencement of amendments

(1) Proceedings for offences committed, or alleged to have been committed, before the substitution of Part 3 and Schedule 1 by the amending Act are to be determined as if the amendments had not been enacted.

(2) Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had the amendments not been enacted continues to apply to the proceedings as if the amendments had not been enacted.

16 References to and in relation to marine safety licences in section 28A

(1) A reference in section 28A to a marine safety licence is taken to include a reference to a licence to which section 10 of the Marine (Boating Safety--Alcohol and Drugs) Act 1991 applied immediately before its repeal.

(2) A reference in section 28A--

(a) to the cancellation or suspension of a marine safety licence is taken to include a reference to the withdrawal of recognition of a recognised licence (within the meaning of section 10 of the Marine (Boating Safety--Alcohol and Drugs) Act 1991 ), and

(b) to the disqualification of the holder of a marine safety licence is taken to include a reference to the disqualification of the person from having a recognised licence recognised.

17 Offences relating to disqualification from holding certain marine safety licences

Section 59A or 63A (as inserted by the amending Act)--

(a) applies only to a disqualification occurring after the commencement of the section, and

(b) does not apply to any offence committed before the commencement of the section.

18 Appointment of harbour masters

A harbour master whose appointment as harbour master was in force immediately before the substitution of section 85 by the amending Act is taken to have been appointed under section 85 as so substituted.

Part 5 - Provisions consequent on enactment of Maritime and Transport Licensing Legislation Amendment Act 2014

19 Application of amendments transferring licensing functions to RMS

(1) The
"transfer day" for the purposes of this clause is the day on which RMS becomes the responsible licensing official for a boat driving licence and vessel registration certificate (a
"relevant licence" ) by virtue of the amendments made to this Act by the Maritime and Transport Licensing Legislation Amendment Act 2014 .

(2) The following provisions have effect on and from the transfer day--

(a) any application for the grant of a relevant licence made (but not yet determined) before the transfer day is to be determined by RMS,

(b) any right or liability of the Minister in relation to a relevant licence (or an application for such a licence) becomes by virtue of this clause a right or liability of RMS,

(c) all proceedings relating to a right or liability of the Minister in relation to a relevant licence (or an application for such a licence) commenced before the transfer day by or against the Minister that are pending immediately before the transfer day are taken to be proceedings pending by or against RMS,

(d) any act, matter or thing done or omitted to be done in relation to a relevant licence (or an application for such a licence) before the transfer day by, to or in respect of the Minister is (to the extent that the act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of RMS,

(e) RMS has all the entitlements and obligations of the Minister in relation to a relevant licence (or an application for such a licence) that the Minister would have had but for the transfer of the Minister's functions to RMS, whether or not those entitlements and obligations were actual or potential at the time the transfer took effect,

(f) a reference in any instrument made under any Act or in any document of any kind to the Minister is (to the extent that it relates to a relevant licence or an application for such a licence, but subject to this clause) to be read as, or as including, a reference to RMS.

(3) The Minister is authorised to provide RMS with any documents or other information obtained or held by or on behalf of the Minister in connection with relevant licences (or applications for such licences) for the purpose of facilitating the exercise by RMS of functions that are conferred or imposed on it by subclause (2).

(4) The operation of this clause (or the provision of documents or other information under this clause) is not to be regarded as--

(a) a breach of contract or confidence or otherwise as a civil wrong, or

(b) a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c) giving rise to any remedy by a party to a contract or instrument, or as causing or permitting the termination of any contract or instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or

(d) an event of default under any contract or instrument.

(5) In this clause--


"liabilities" means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).


"rights" means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

Part 6 - Provisions consequent on enactment of Road Transport Amendment (Alcohol and Drug Testing) Act 2014

20 Definition

In this Part--


"amending Act" means the Road Transport Amendment (Alcohol and Drug Testing) Act 2014 .

21 Application of certain amendments relating to procedures for taking urine samples

The amendments made to clauses 15 (5) and 20 (5) of Schedule 1 by the amending Act apply only in relation to a sample of urine taken after the commencement of those amendments.

22 Notification by authorised officer before analysis of sample relating to fatal accident

A notification under clause 15 (8) of Schedule 1, before its amendment by the amending Act, is taken to be a notification under that provision as amended, in relation to an analysis of a sample to which the notification relates carried out after the commencement of the amendment.

23 Application of amendment relating to sobriety assessments

Clause 22 (4) of Schedule 1, as substituted by the amending Act, applies only in relation to an offence committed after the commencement of that substitution.

24 Application of certain amendments relating to certificate evidence by analysts and authorised sample takers

(1) The amendments made to clauses 27 (6) and 29 (3) of Schedule 1 by the amending Act apply to a certificate in relation to a sample regardless of whether the sample was received by or on behalf of an analyst before or after the commencement of those amendments.

(2) Clause 27 (7)-(9) of Schedule 1, as inserted by the amending Act, apply in relation to a certificate regardless of whether the sample to which the certificate relates was taken before or after the commencement of those provisions.

Part 7 - Provisions consequent on enactment of Marine Legislation Amendment Act 2016

25 Definition

In this Part--


"amending Act" means the Marine Legislation Amendment Act 2016 .

26 Application of seizure, impoundment and forfeiture powers

Division 2 of Part 2, as inserted by the amending Act, applies only in relation to behaviour and offences that occur after the commencement of that Division.

27 Investigations

Part 8, as in force immediately before its amendment by the amending Act, continues to apply in relation to any investigation ordered by the Minister before that amendment.

28 Use of existing document for transitional periods

(1) The regulations may make provision for or with respect to the use of existing documents for the purposes of this Act for transitional periods.

(2) A document is an
"existing document" for the purposes of subclause (1) if it is a document prepared before commencement of the amending Act for use in connection with the administration or enforcement of this Act.

Part 8 - Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act 2019

29 Alcohol and drug offences

The reference to section 26 in the definition of
"alcohol or drug offence" in section 28B of the Act is taken to include a reference to section 28 of the Act as in force immediately before the repeal of section 28 by the Marine Legislation Amendment Act 2016 .