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MARITIME AND OTHER LEGISLATION AMENDMENT ACT 2006 No. 21 - SECT 87 87 Insertion of new pt 13A

MARITIME AND OTHER LEGISLATION AMENDMENT ACT 2006 No. 21 - SECT 87

87 Insertion of new pt 13A

After section 183--

insert--

'(1) The purpose of this part is to provide for alternative ways of ensuring compliance with this Act.

'(2) Division 2 provides for enforcement orders and interim enforcement orders if a person has failed to comply with any of the following--

(a) a direction or requirement given to the person by the general manager, a harbour master or a shipping inspector;
(b) a division 3 undertaking given by the person to the general manager.

'(3) Division 3 provides for undertakings.

'A prescribed applicant may bring a proceeding in the District Court for any of the following--

(a) an enforcement order;
(b) an order cancelling or amending an enforcement order or interim enforcement order.

'(1) The District Court may make an enforcement order if the court is satisfied about any of the following--

(a) a notice offence has been committed or, unless an enforcement order is made, will be committed;
(b) a division 3 undertaking has been contravened or, unless an enforcement order is made, will be contravened.

'(2) Subsection (1) applies whether or not there has been a prosecution for the notice offence.

'(1) If a prescribed applicant has brought a proceeding for an enforcement order but the District Court has not decided the proceeding, the court may make an interim enforcement order if it is satisfied it would be appropriate to make the interim enforcement order.

'(2) The District Court may make the interim enforcement order on application by the prescribed applicant or on its own initiative.

'(3) An interim enforcement order may be made subject to conditions.

'(1) An enforcement order or an interim enforcement order may direct a person (the respondent) to do 1 or more of the following--

(a) to stop an activity that constitutes, or will constitute, a notice offence or a contravention of a division 3 undertaking;
(b) not to start an activity that will constitute a notice offence or a contravention of a division 3 undertaking;
(c) to do anything required to stop committing a notice offence, or a contravention of a division 3 undertaking, including, for example, requiring the repair, demolition or removal of a ship or a part of a ship.

'(2) If an enforcement order or an interim enforcement order is made as mentioned in subsection (1), the District Court may do either or both of the following--

(a) direct the respondent to give a security bond to the State for a stated period for a matter mentioned in the enforcement order or interim enforcement order;
(b) make another order the court considers appropriate.

'(3) An enforcement order or interim enforcement order--

(a) may be in terms the District Court considers appropriate to secure compliance with this Act; and
(b) must state the time by which the order is to be complied with.

'(4) A person who contravenes an enforcement order or interim enforcement order commits an offence against this Act.

Maximum penalty--500 penalty units or 1 year's imprisonment.

'(5) The District Court may order the forfeiture to the State of all or part of the security bond given by the respondent under subsection (2)(a) if--

(a) a prescribed applicant applies to the court for an order for the forfeiture of all or part of the security bond; and
(b) the court is satisfied that the respondent contravened the enforcement order or interim enforcement order during the period for which the security bond was given, whether or not the respondent has been prosecuted for an offence against subsection (4).

'(1) The District Court's power to make an enforcement order or interim enforcement order to stop, or not to start, an activity may be exercised whether or not--

(a) it appears to the court that the person against whom the order is made intends to engage, or to continue to engage, in the activity; or
(b) the person has previously engaged in an activity of the kind; or
(c) it appears to the court a marine incident may happen if the person engages, or continues to engage, in the activity.

'(2) The District Court's power to make an enforcement order or interim enforcement order to do anything may be exercised whether or not--

(a) it appears to the court that the person against whom the order is made intends to fail, or to continue to fail, to do the thing; or
(b) the person has previously failed to do a thing of the kind; or
(c) it appears to the court a marine incident may happen if the person fails, or continues to fail, to do the thing.

'(3) The District Court may cancel or amend an enforcement order or interim enforcement order.

'(4) The District Court's power under this section is in addition to its other powers.

'To remove any doubt, it is declared that no undertaking as to damages or costs may be required of a prescribed applicant or the State in relation to an enforcement order or interim enforcement order.

'(1) This section applies if the general manager reasonably believes a person has contravened, will contravene or will be involved in a contravention of, this Act.

'(2) The general manager may, by written notice given to the person--

(a) state the act or omission the general manager believes is, or will constitute, the contravention or involvement with the contravention; and
(b) ask the person to give the general manager a written undertaking under this division (a division 3 undertaking) that the person will not commit, continue to commit or repeat the act or omission.

'Without limiting section 183H, the general manager may accept a division 3 undertaking given by a person for this division about anything for which the chief executive, the general manager or a harbour master has a function or power under this Act.

'(1) This section applies if the general manager has accepted a division 3 undertaking given by a person.

'(2) The person may vary or withdraw the division 3 undertaking only if the general manager agrees to the variation or withdrawal.

'(3) The general manager may--

(a) vary the division 3 undertaking only if the person agrees to the variation; or
(b) withdraw the division 3 undertaking only if the general manager reasonably believes either of the following--
(i) before the division 3 undertaking was accepted, the person contravened this Act in a way unknown to the general manager and, had the general manager known about the contravention, he or she would not have accepted the division 3 undertaking;
(ii) the division 3 undertaking is no longer necessary.

'(4) If a division 3 undertaking is varied or withdrawn under this section, the general manager must give written notice of the variation or withdrawal to the person.

'(5) The variation or withdrawal takes effect when written notice of the variation or withdrawal is given to the person.

'(1) This section applies if the general manager reasonably believes a person--

(a) has contravened a term of a division 3 undertaking; or
(b) will contravene a term of a division 3 undertaking, unless an enforcement order is made.

'(2) The general manager may apply to the District Court for an enforcement order under division 2.

'(1) The general manager must, in any way the general manager reasonably considers appropriate, keep a register of each division 3 undertaking given to the general manager by a person under this division.

'(2) Also, the general manager must ensure the register is available for public inspection, without charge, at a place prescribed under a regulation during normal working hours.'.