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TASMANIA
__________
MARINE SAFETY (MISUSE OF ALCOHOL) BILL
2006
__________
CONTENTS
PART 1 PRELIMINARY
Division 1 Title and commencement
1. Short title
2. Commencement
Division 2 Interpretation
3. Interpretation
4. Meaning of "relevant time"
5. Determining who is owner of vessel
6. Determining who is in charge of vessel
7. Status of pilots and masters, &c., of piloted vessels
8. Supervising analyst, approved analysts and approved operators
Division 3 Application of Act
9. Which vessels does Act apply to?
10. When does Act apply to vessels?
11. Extra-territorial operation
12. Act binds Crown
[Bill 22]-III
PART 2 RESTRICTIONS ON USE OF ALCOHOL BY MARINERS
Division 1 Commercial vessels
13. Person who has consumed alcohol not to operate commercial
vessel
14. Person who has consumed alcohol not to be allowed to operate
commercial vessel
Division 2 Other vessels
15. Application of Division
16. Person who has consumed more than certain amount of alcohol
not to operate non-commercial vessel
17. Person who has consumed more than certain amount of alcohol
not to be allowed to operate non-commercial vessel
PART 3 ENFORCEMENT OF ALCOHOL RESTRICTIONS
Division 1 Police may require breath tests, breath analyses and blood-
samplings
18. Breath testing, &c., of vessel operators
19. Breath analysis, &c., of vessel operators suspected of having
consumed alcohol
20. Breath analysis, &c., of persons involved in maritime accidents
Division 2 Liability to submit to breath test, breath analysis or blood-
sampling
21. Liable person must submit to breath test, breath analysis or
blood-sampling
22. Liable person failing to submit to breath test, breath analysis or
blood-sampling may be taken into custody
23. Person liable to submit to breath analysis may elect to have
blood-sampling instead
24. Offence to refuse breath analysis while in custody if alternative
election not made, &c.
25. Duration of breath analysis liability
26. Offence to attempt to manipulate result of breath test, breath
analysis or blood-sampling
27. Enforcement procedures not to jeopardise safety of persons
being given first aid, &c.
2
28. Blood-sampling may be required even if breath test or analysis
not safe or practicable
Division 3 Testing and analysis procedures
29. Rights and obligations on completion of breath analysis, &c.
30. Blood-sampling of person incapable of consenting, and related
duty of medical practitioner
31. Duty of medical practitioner who refrains from carrying out
blood-sampling in patient's interest
32. Duty of medical practitioner who carries out blood-sampling
33. Follow-up procedure for blood-sampling of person incapable of
consenting
34. Retention of blood sample during detention in custody
35. Analysis of blood samples by approved analyst
Division 4 Police powers
36. Ancillary police powers
37. Limitation on exercise of police powers
38. Identification of offenders
39. Police may direct certain persons not to operate vessels, &c.
Division 5 Penalties
40. Interpretation of Division
41. Penalties for direct breaches of marine alcohol restrictions
42. Additional penalty of disqualification for certain offences
43. Offence to operate vessel contrary to disqualification order
44. Offence to apply for local mariners certificate if prohibited from
doing so
Division 6 Restricted mariners certificates
45. Interpretation of Division
46. Disqualified person may apply for restricted mariners certificate
47. Courts may make order authorising issue of restricted mariners
certificate
48. Offence to contravene conditions of restricted mariners
certificate, &c.
3
Division 7 Supplementary provisions
49. Notice of offence
PART 4 EVIDENCE
50. Presumptions regarding breath tests and analyses, &c.
51. Restrictions on admission of evidence of breath analyses
52. Evidence as to carrying out breath analyses
53. Evidence of matters related to failure to submit to breath analysis
54. Evidentiary certificates and records
55. Limitation on tendering of evidentiary certificates and records
56. Section 177A of Evidence Act 2001 not to apply to evidentiary
certificate, &c.
57. Evidence as to breath analyses, &c., inadmissible in certain
proceedings
PART 5 MISCELLANEOUS
58. Limitation on obligations of medical practitioners
59. Avoidance of certain provisions in insurance contracts
60. Service of documents
61. Regulations
62. Administration of Act
63. Consequential Amendments
SCHEDULE 1 EVIDENTIARY CERTIFICATES AND RECORDS
SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
4
MARINE SAFETY (MISUSE OF ALCOHOL) BILL
2006
(Brought in by the Minister for Police and Emergency
Management, the Honourable David Edward Llewellyn)
A BILL FOR
An Act to improve marine safety by placing certain
restrictions on the use of alcohol by persons having
responsibilities connected with the operation of vessels and
by providing for the enforcement of those restrictions, to
make consequential amendments to the Road Safety
(Alcohol and Drugs) Act 1970 and certain other Acts and
for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
Division 1 Title and commencement
1. Short title
This Act may be cited as the Marine Safety
(Misuse of Alcohol) Act 2006.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 22] 5
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 3 Part 1 Preliminary
Division 2 Interpretation
3. Interpretation
In this Act, unless the contrary intention
appears
"adult" means a person who has attained the
age of 18 years;
"approved analyst" see section 8(3);
"approved operator" see section 8(4);
"blood-sampling" means the taking of a
sample of a person's blood;
"breath analysing instrument" means a
breath analysing instrument within the
meaning of the Corresponding Act;
"breath analysis" has the same meaning as in
the Corresponding Act;
"breath test" has the same meaning as in the
Corresponding Act;
"commercial purposes" includes
(a) the purposes of a passenger
transport or ferry service, whether
for paying or non-paying
passengers; and
(b) research purposes;
6
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 1 Preliminary s. 3
"commercial vessel" means a vessel, other
than a fishing vessel, that is being
operated for commercial purposes;
"conviction", in relation to an offence,
includes a finding of guilt without the
recording of a conviction for the offence;
"Corresponding Act" means the Road Safety
(Alcohol and Drugs) Act 1970;
"corresponding maritime authority" means
an office or body established under a law
of another State or a Territory, or under a
law of the Commonwealth, and having
functions that correspond, or
substantially correspond, to those of
MAST;
"disqualification order" means an order
under section 41(2)(b) or section 42(2);
"evidentiary certificate" means a certificate
specified in Part 1 of Schedule 1;
"evidentiary record" means a record
specified in Part 2 of Schedule 1;
"fail", to submit to a procedure or comply
with a direction, includes refusing to
submit to the procedure or comply with
the direction;
"fishing vessel" means a vessel that is being
operated, other than under charter, for or
in connection with the taking of fish for a
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Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 3 Part 1 Preliminary
commercial purpose other than marine
farming;
"functions" includes duties;
"in charge", of a vessel see section 6;
"liability", of a person to submit to a breath
test, breath analysis or blood-sampling,
means a liability that the person incurs
because of
(a) the operation of a provision of
this Act; or
(b) a requirement of a police officer
under this Act; or
(c) in the case of a blood-sampling
under section 23, the person's
election to submit to the blood-
sampling;
"mariners certificate" means a certificate,
licence, permit or other document
(however described) that
(a) is issued by MAST or a
corresponding maritime
authority; and
(b) authorises the person to whom it
is issued to operate a vessel in a
particular capacity in accordance
with the conditions specified in
that certificate, licence, permit or
other document;
8
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 1 Preliminary s. 3
"maritime accident" includes, but is not
limited to
(a) vessels colliding; and
(b) a vessel colliding with a
navigational hazard; and
(c) a vessel colliding with the shore
or a structure on shore; and
(d) a vessel running aground; and
(e) an accident, involving the use of
a vessel, that results in the death
or injury of any person or damage
to property; and
(f) an explosion or outbreak of fire
on a vessel; and
(g) a vessel sinking or capsizing;
"MAST" means the Marine and Safety
Authority established under the Marine
and Safety Authority Act 1997;
"medical evidence" means the evidence of
one or more medical practitioners;
"medical practitioner" means a person
holding practising registration under the
Medical Practitioners Registration Act
1996;
"nurse" means a person holding registration
or enrolment as a nurse under the
Nursing Act 1995;
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Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 3 Part 1 Preliminary
"operating", a vessel, means either or both of
the following:
(a) being aboard and in charge of the
vessel;
(b) being aboard the vessel and
exerting any degree of control
over its means of steering or
propulsion;
"owner", of a vessel see section 5;
"permitted concentration" means a
concentration of 0.05 of a gram of
alcohol in
(a) 210 litres of breath; or
(b) 100 millilitres of blood;
"place" includes a vehicle or vessel;
"prescribed", in relation to any matter,
means
(a) prescribed in the regulations; or
(b) if the regulations do not provide
for that matter, prescribed under
the Corresponding Act;
"procedure" means a breath test, breath
analysis or blood-sampling;
"proceedings" means proceedings for an
offence under this Act;
10
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Act No. of
Part 1 Preliminary s. 3
"provision", of a contract of insurance, means
any term, condition, covenant or other
provision of the contract, however
described;
"regulations" means regulations made and in
force under this Act;
"relevant time" see section 4;
"secured", in relation to a vessel, means that
the vessel is
(a) riding at anchor (other than a sea
anchor); or
(b) tied up to a mooring, or to a
moored raft or moored pontoon;
or
(c) tied up to a jetty, wharf or
breakwater; or
(d) berthed in a marina; or
(e) secured to another vessel to
which paragraph (a), (b), (c) or
(d) applies; or
(f) connected up to something such
as a crane, slipway cradle or
trailer winch in order to be put
into or taken out of the water;
"signatory", in relation to a certificate, means
the person by whom the certificate
purports to have been signed;
11
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Act No. of
s. 3 Part 1 Preliminary
"subject", in relation to a test, analysis or
sampling of breath or blood, means the
person whose breath or blood has been
tested, analysed or sampled;
"supervising analyst" see section 8(1);
"vessel" means
(a) a vessel within the meaning of
the Marine and Safety Authority
Act 1997 that is
(i) being wholly or partly
propelled by an engine; or
(ii) designed or intended to be
wholly or partly propelled
by an engine, whether the
engine is
(A) permanently
installed in the
vessel; or
(B) a detachable
engine temporarily
mounted on the
vessel; or
(C) aboard and
capable of being
temporarily
mounted on the
vessel; or
12
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 1 Preliminary s. 4
(b) a vessel prescribed in the
regulations.
4. Meaning of "relevant time"
For the purposes of this Act, a reference to "the
relevant time" is a reference to
(a) in relation to a person's liability to
submit to a breath analysis under
section 18, the time when the person is
first required to submit to a breath test
under that section; and
(b) in relation to a person's liability to
submit to a breath analysis under
section 19, the time when the person is
first required to submit to the breath
analysis; and
(c) in relation to a person's liability to
submit to a breath analysis or blood-
sampling under section 20, the time
when the person is first required to
submit to the breath analysis or blood-
sampling; and
(d) in relation to a person's liability to
submit to a breath analysis or blood-
sampling under section 23, the time
when the person is first required to
submit to the breath analysis.
13
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Act No. of
s. 5 Part 1 Preliminary
5. Determining who is owner of vessel
(1) A reference in this Act to the owner of a vessel
includes a reference to a person who
(a) is registered (with or by MAST or a
corresponding maritime authority) as the
owner of the vessel; or
(b) is a joint owner of the vessel; or
(c) is the charterer, lessee or hirer of the
vessel; or
(d) has a right or obligation to exercise or
perform any powers or functions of an
owner of the vessel; or
(e) publicly represents that he or she has the
right or obligation to exercise or perform
those powers or functions; or
(f) is a director or other person concerned in
the management of a body corporate that
owns the vessel.
(2) A person does not cease to be the owner of a
vessel for the purposes of this Act if the vessel
is
(a) secured under a mortgage, bill of sale, or
other form of security; or
(b) chartered, leased or hired by another
person.
14
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 1 Preliminary s. 6
6. Determining who is in charge of vessel
(1) For the purposes of this Act, a person is taken to
be in charge of a vessel at a particular time if, at
that time
(a) he or she is the only person, or the only
adult, aboard the vessel; or
(b) he or she purports by word or deed, and
without contradiction by any other
person aboard, to be in charge of the
vessel; or
(c) the other persons aboard the vessel or a
majority of them acknowledge, by word
or deed, that the person is in charge of
the vessel; or
(d) of all the persons aboard the vessel, he or
she has ultimate command of the vessel's
movements.
(2) Subsection (1)(d) has effect regardless of
whether, at the particular time
(a) the vessel is underway; or
(b) the person is actually commanding the
vessel's movements.
(3) If it is established in any proceedings that, at a
particular time, a person was the owner of a
vessel and was
(a) aboard the vessel; and
15
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Act No. of
s. 7 Part 1 Preliminary
(b) qualified by a mariners certificate to be
in charge of or otherwise operate the
vessel
it is to be presumed, unless the person on the
balance of probabilities establishes otherwise,
that he or she had ultimate command of the
vessel's movements at that time.
7. Status of pilots and masters, &c., of piloted vessels
For the avoidance of doubt
(a) a person who is purporting to exercise
the powers or perform the functions of a
pilot on a vessel at a particular time is,
for the purposes of this Act, taken to be
operating the vessel at that time; and
(b) a person is not, for the purposes of this
Act, taken to have ceased being in charge
of a vessel by reason only that the vessel
is temporarily under the direction of a
pilot.
8. Supervising analyst, approved analysts and
approved operators
(1) The person who is the supervising analyst for the
purposes of the Corresponding Act is also the
supervising analyst for the purposes of this Act.
16
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Act No. of
Part 1 Preliminary s. 9
(2) For the purposes of this Act, the supervising
analyst has such functions as may be prescribed
in relation to the following matters:
(a) the maintenance, testing and use of
breath analysing instruments;
(b) the training and instruction of approved
operators;
(c) the making and keeping of records
relating to the maintenance, testing and
use of breath analysing instruments.
(3) A person who is an approved analyst for the
purposes of the Corresponding Act is also an
approved analyst for the purposes of this Act.
(4) A police officer who is an approved operator for
the purposes of the Corresponding Act is also an
approved operator for the purposes of this Act.
Division 3 Application of Act
9. Which vessels does Act apply to?
(1) This Act applies to every vessel other than
(a) a vessel under the control of the
Australian Defence Force; or
(b) a warship, naval auxiliary or other vessel
operating exclusively in the non-
commercial government service of a
foreign country.
17
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Act No. of
s. 10 Part 1 Preliminary
(2) Subsection (1) has effect regardless of whether
the waters that a vessel is in are navigable.
(3) In this section
"non-commercial" includes scientific
research.
10. When does Act apply to vessels?
(1) Unless the contrary intention appears, this Act
only applies to vessels that are
(a) underway; or
(b) involved in maritime accidents.
(2) A vessel is taken to be underway for the
purposes of this Act if it is not secured.
(3) To avoid doubt, a vessel is taken to be underway
for the purposes of this Act even if it is
(a) drifting, with or without a sea anchor; or
(b) moving otherwise than under its own
power; or
(c) temporarily stranded, and not secured.
(4) However, the fact that a vessel is not underway
does not prevent police officers from exercising
powers under this Act in respect of the vessel, or
in respect of persons on or from the vessel, for
the purposes of enforcing this Act, particularly
as regards
18
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Act No. of
Part 1 Preliminary s. 11
(a) acts or omissions that occurred, or may
have occurred, while the vessel was
underway; or
(b) acts or omissions that would or would be
likely to occur if the vessel were to get
underway.
11. Extra-territorial operation
(1) If
(a) a person does, wholly or partly outside
Tasmania, an act or thing that constitutes
an offence under section 13(1),
section 14(1), section 14(2),
section 16(1), section 17(1) or
section 17(2); and
(b) there is a real and substantial link
between doing the act or thing and
Tasmania
that section, and the other provisions of this Act,
applies to that act or thing as if it had been done
wholly in Tasmania.
(2) For the purposes of subsection (1), there is a real
and substantial link with Tasmania if
(a) a significant part of the conduct relating
to, or constituting, the doing of the act or
thing occurred in Tasmania; or
19
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 12 Part 1 Preliminary
(b) where the act or thing was done wholly
or partly outside Tasmania, substantial
harmful effects arose in Tasmania.
12. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
20
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 2 Restrictions on Use of Alcohol by Mariners s. 13
PART 2 RESTRICTIONS ON USE OF ALCOHOL BY
MARINERS
Division 1 Commercial vessels
13. Person who has consumed alcohol not to operate
commercial vessel
(1) A person must not operate a commercial vessel
if there is alcohol in the person's breath or blood.
Penalty: The penalty provided for this offence
by section 41.
(2) However, it is a defence in proceedings for an
offence under subsection (1) if the defendant
establishes that
(a) at the time of the alleged offence, there
was an emergency threatening the safety
of the commercial vessel or persons
aboard the commercial vessel; and
(b) the emergency was unrelated to the
conduct of the defendant; and
(c) it was necessary for the defendant to
operate the commercial vessel in a
particular capacity at that time in order to
deal with the emergency; and
(d) the defendant did not operate the
commercial vessel in that capacity for
any longer than was reasonably
necessary to deal with the emergency.
21
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 14 Part 2 Restrictions on Use of Alcohol by Mariners
14. Person who has consumed alcohol not to be allowed
to operate commercial vessel
(1) The owner of a commercial vessel must not
cause or allow a person who has alcohol in his or
her breath or blood to operate the commercial
vessel.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 50 penalty units;
and
(b) a second offence, a fine not
exceeding 100 penalty units;
and
(c) a third or subsequent offence, a
fine not exceeding 200 penalty
units.
(2) The person in charge of a commercial vessel
must not cause or allow another person to
operate the commercial vessel if that other
person has alcohol in his or her breath or blood.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 50 penalty units;
and
(b) a second offence, a fine not
exceeding 100 penalty units;
and
22
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Act No. of
Part 2 Restrictions on Use of Alcohol by Mariners s. 14
(c) a third or subsequent offence, a
fine not exceeding 200 penalty
units.
(3) However, it is a defence in proceedings for an
offence under subsection (1) or (2) if the
defendant establishes that, at the time of the
alleged offence, the defendant did not know and
could not reasonably have been expected to
know that the person who the defendant caused
or allowed to operate the commercial vessel had
alcohol in his or her breath or blood.
(4) It is also a defence in proceedings for an offence
under subsection (1) or (2) if the defendant
establishes that
(a) at the time of the alleged offence, there
was an emergency threatening the safety
of the commercial vessel or persons
aboard the commercial vessel; and
(b) the emergency was unrelated to the
conduct of the defendant or the person
who the defendant caused or allowed to
operate the commercial vessel; and
(c) it was necessary for the defendant to
cause or allow that person to operate the
commercial vessel in a particular
capacity at that time in order to deal with
the emergency; and
(d) the defendant did not cause or allow that
person to operate the commercial vessel
in that capacity for any longer than was
23
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 15 Part 2 Restrictions on Use of Alcohol by Mariners
reasonably necessary to deal with the
emergency.
Division 2 Other vessels
15. Application of Division
This Division applies to vessels other than
commercial vessels.
16. Person who has consumed more than certain
amount of alcohol not to operate non-commercial
vessel
(1) A person must not operate a vessel to which this
Division applies if there is more than the
permitted concentration of alcohol in the
person's breath or blood.
Penalty: The penalty provided for this offence
by section 41.
(2) However, it is a defence in proceedings for an
offence under subsection (1) if the defendant
establishes that, at the time of the alleged
offence
(a) another person had overall control of the
vessel's means of steering and
propulsion; and
(b) that other person was an adult who was
competent to exercise that control; and
24
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Act No. of
Part 2 Restrictions on Use of Alcohol by Mariners s. 17
(c) that other person did not have more than
the permitted concentration of alcohol in
his or her breath or blood.
(3) It is also a defence in proceedings for an offence
under subsection (1) if the defendant establishes
that
(a) at the time of the alleged offence, there
was an emergency threatening the safety
of the vessel or persons aboard the
vessel; and
(b) the emergency was unrelated to the
conduct of the defendant; and
(c) it was necessary for the defendant to
operate the vessel in a particular capacity
at that time in order to deal with the
emergency; and
(d) the defendant did not operate the vessel
in that capacity for any longer than was
reasonably necessary to deal with the
emergency.
17. Person who has consumed more than certain
amount of alcohol not to be allowed to operate non-
commercial vessel
(1) The owner of a vessel to which this Division
applies must not cause or allow a person who
has more than the permitted concentration of
alcohol in his or her breath or blood to operate
the vessel.
25
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 17 Part 2 Restrictions on Use of Alcohol by Mariners
Penalty: In the case of
(a) a first offence, a fine not
exceeding 25 penalty units;
and
(b) a second offence, a fine not
exceeding 50 penalty units;
and
(c) a third or subsequent offence, a
fine not exceeding 100 penalty
units.
(2) The person in charge of a vessel to which this
Division applies must not cause or allow another
person to operate the vessel if the other person
has more than the permitted concentration of
alcohol in his or her breath or blood.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 25 penalty units;
and
(b) a second offence, a fine not
exceeding 50 penalty units;
and
(c) a third or subsequent offence, a
fine not exceeding 100 penalty
units.
(3) However, it is a defence in proceedings for an
offence under subsection (1) or (2) if the
defendant establishes that, at the time of the
26
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
Part 2 Restrictions on Use of Alcohol by Mariners s. 17
alleged offence, the defendant did not know and
could not reasonably have been expected to
know that the person who the defendant caused
or allowed to operate the vessel had more than
the permitted concentration of alcohol in his or
her breath or blood.
(4) It is also a defence in proceedings for an offence
under subsection (1) or (2) if the defendant
establishes that
(a) at the time of the alleged offence, there
was an emergency threatening the safety
of the vessel or persons aboard the
vessel; and
(b) the emergency was unrelated to the
conduct of the defendant or the person
who the defendant caused or allowed to
operate the vessel; and
(c) it was necessary for the defendant to
cause or allow that person to operate the
vessel in a particular capacity at that time
in order to deal with the emergency; and
(d) the defendant did not cause or allow that
person to operate the vessel in that
capacity for any longer than was
reasonably necessary to deal with the
emergency.
27
Marine Safety (Misuse of Alcohol) Act 2006
Act No. of
s. 18 Part 3 Enforcement of Alcohol Restrictions
PART 3 ENFORCEMENT OF ALCOHOL
RESTRICTIONS
Division 1 Police may require breath tests, breath analyses
and blood-samplings
18. Breath testing, &c., of vessel operators
(1) This section applies if it appears to a police
officer that a person is, or has just ceased,
operating a vessel.
(2) To determine whether an offence has been
committed under Part 2, the police officer may
require the person to submit to a breath test.
(3) The police officer may impose the requirement
whether or not
(a) the police officer suspects there is
alcohol in the person's breath or blood;
or
(b) the vessel is underway.
(4) After the police officer imposes the requirement,
the person also becomes liable to submit to a
breath analysis if the police officer (or another
police officer) reasonably suspects (from the
result of the breath test or otherwise) that there is
alcohol in the person's breath or blood.
28
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Act No. of
Part 3 Enforcement of Alcohol Restrictions s. 19
19. Breath analysis, &c., of vessel operators suspected
of having consumed alcohol
(1) This section applies if
(a) it appears to a police officer that a person
is, or has just ceased, operating a vessel;
and
(b) the police officer reasonably suspects
that there is alcohol in the person's
breath or blood.
(2) To determine whether an offence has been
committed under Part 2, the police officer may
require the person to submit to a breath analysis.
(3) The police officer may impose the requirement
whether or not the vessel is underway.
(4) If the police officer requires the person to submit
to a breath analysis, the police officer (or another
police officer) may require the person firstly to
submit to a breath test.
20. Breath analysis, &c., of persons involved in
maritime accidents
(1) This section applies if
(a) it appears to a police officer that a
maritime accident has occurred; and
(b) the police officer reasonably suspects
that a person was aboard a vessel
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involved in the maritime accident when it
occurred.
(2) The police officer may require the person to
submit to a breath analysis or blood-sampling.
(3) The police officer may impose the requirement
whether or not
(a) the police officer suspects that there is
alcohol in the person's breath or blood;
or
(b) the person is, or was when the maritime
accident occurred, operating the vessel;
or
(c) any vessel apparently involved in the
maritime accident is underway.
(4) If the police officer requires the person to submit
to a breath analysis or blood-sampling, the police
officer (or another police officer) may require
the person firstly to submit to a breath test.
Division 2 Liability to submit to breath test, breath analysis
or blood-sampling
21. Liable person must submit to breath test, breath
analysis or blood-sampling
(1) This section applies if a person is liable to
submit to a breath test, breath analysis or blood-
sampling under Division 1.
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(2) The person must not, without reasonable excuse,
fail to
(a) submit to the breath test, breath analysis
or blood-sampling; or
(b) comply with such directions as the police
officer requiring the person to submit to
the breath test, breath analysis or blood-
sampling (or another police officer) may
give the person to enable it to be carried
out.
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(3) Without limiting the generality of
subsection (2)(b), the person may be directed
to
(a) go to such place (by such means and with
such persons) as the police officer giving
the direction nominates; and
(b) submit to the breath test, breath analysis
or blood-sampling at that place.
(4) However, it is a defence in proceedings for an
offence under subsection (2) in respect of a
breath analysis liability if the defendant
establishes that
(a) the defendant was informed by the
approved operator of a breath analysing
instrument or a police officer that the
defendant could elect to submit to a
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blood-sampling instead of the breath
analysis; and
(b) the defendant made that election; and
(c) the blood-sampling was carried out, or
could have practicably been carried out,
within 3 hours after the relevant time.
(5) In proceedings for an offence under
subsection (2), the medical or physical condition
of the defendant at the time of the alleged
offence is not a reasonable excuse for the
purposes of that subsection unless the court is
satisfied by medical evidence that, by reason of
that condition
(a) it was not possible, practicable or safe for
the defendant to submit to the relevant
procedure; or
(b) the defendant would have suffered an
abnormally high level of pain, discomfort
or distress in submitting to the relevant
procedure; or
(c) it was otherwise unreasonable to expect
the defendant to submit to the relevant
procedure.
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22. Liable person failing to submit to breath test,
breath analysis or blood-sampling may be taken
into custody
(1) This section applies if a person who is liable to
submit to a breath test, breath analysis or blood-
sampling under Division 1
(a) fails to submit to the breath test, breath
analysis or blood-sampling; or
(b) fails to comply with a direction under
section 21(2)(b) given in connection with
the breath test, breath analysis or blood-
sampling, or is in such a condition or
behaves in such a manner as to give the
police officer who has given the direction
(or another police officer) reasonable
grounds to believe that the person will
not comply with the direction.
(2) A police officer may
(a) take the person into custody; and
(b) convey the person, or cause the person to
be conveyed, to some appropriate place;
and
(c) detain the person at that place for so long
as is necessary to enable a requirement to
be imposed on the person under
section 23.
(3) The person, if taken into custody pursuant to
subsection (2), must not
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(a) escape or attempt to escape from
custody; or
(b) obstruct or hinder his or her conveyance
to a place pursuant to that subsection.
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
23. Person liable to submit to breath analysis may elect
to have blood-sampling instead
(1) This section applies if
(a) a person who is liable to submit to a
breath analysis under Division 1 is being
detained at a place pursuant to
section 22(2); and
(b) a breath analysis can be carried out
forthwith at the place.
(2) A police officer may require the person to
submit to a breath analysis at the place.
(3) If the person fails to comply with the
requirement, the approved operator of a breath
analysing instrument at the place is to inform the
person that he or she may elect to submit to a
blood-sampling instead of the breath analysis.
(4) However, the approved operator need not
comply with subsection (3) if he or she does not
believe that the blood-sampling could be
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practicably begun within 3 hours after the
relevant time.
(5) If the blood-sampling election is offered and the
person makes that election, the approved
operator is to arrange for a medical practitioner
or nurse to carry out the blood-sampling.
24. Offence to refuse breath analysis while in custody if
alternative election not made, &c.
(1) This section applies if a person is liable to
submit to a breath analysis under section 23(2).
(2) The person must not fail to submit to the breath
analysis.
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(3) However, it is a defence in any proceedings for
an offence under subsection (2) if the defendant
establishes that
(a) the defendant was informed in
accordance with section 23(3) that he or
she could elect to submit to a blood-
sampling instead of the breath analysis;
and
(b) the defendant made that election; and
(c) the blood-sampling was, or could have
practicably been, carried out within 3
hours after the relevant time.
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25. Duration of breath analysis liability
(1) A person's liability to submit to a breath analysis
or blood-sampling under Division 1 or
section 23(2) expires 3 hours after the relevant
time if the breath analysis or blood-sampling is
not begun within those 3 hours.
(2) A police officer is to have regard to
subsection (1) when enforcing this Act and,
more specifically, is not to require a person to
submit to a breath analysis under Division 1 or
section 23, or to a blood-sampling under
Division 1, unless the police officer believes that
the breath analysis or blood-sampling could be
practicably begun before the person's liability to
submit to it expires.
(3) However, a failure to comply with subsection (2)
does not invalidate any action of a police officer.
26. Offence to attempt to manipulate result of breath
test, breath analysis or blood-sampling
(1) This section applies if a person has become
liable under this Act to submit to a breath test,
breath analysis or blood-sampling.
(2) The person must not, before submitting to the
breath test, breath analysis or blood-sampling, do
anything with the intention of altering the
concentration of alcohol in the person's blood.
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Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
27. Enforcement procedures not to jeopardise safety of
persons being given first aid, &c.
(1) This section applies if first aid or medical
treatment is being administered to a person by
(a) a medical practitioner; or
(b) a nurse; or
(c) an ambulance officer.
(2) A police officer is not entitled to require the
person to submit to a breath test, breath analysis
or blood-sampling under this Act unless the
person responsible for administering the first aid
or medical treatment has
(a) been informed that the police officer
intends to impose the requirement; and
(b) been asked whether it is safe for the
person to submit to the breath test, breath
analysis or blood-sampling (or a question
to that effect); and
(c) indicated, either by an affirmative answer
to the question or by raising no objection
on medical grounds, that it is safe for the
person to submit to the breath test, breath
analysis or blood-sampling.
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(3) A requirement imposed on the person contrary to
this section is void and the results of a breath
test, breath analysis or blood-sampling carried
out pursuant to that requirement are inadmissible
in any proceedings against the person under any
Act.
(4) This section prevails over any section of Part 2
or any other section of this Part.
(5) In this section
"ambulance officer" means a person who is
providing ambulance services
(a) under the Ambulance Service Act
1982; or
(b) on an honorary or volunteer
basis.
28. Blood-sampling may be required even if breath test
or analysis not safe or practicable
(1) This section applies if a police officer
(a) is prevented by section 27 from requiring
a person to submit to a breath test or
breath analysis under this Act but is not
similarly impeded as regards requiring a
blood-sampling; or
(b) believes that, by reason of a person's
condition
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(i) it would be impracticable or
unreasonable to require the
person to submit to a breath test
or breath analysis under this Act;
or
(ii) it might not be safe to require the
person to submit to a breath test
or breath analysis under this Act.
(2) The police officer may require the person to
submit to a blood-sampling instead of the breath
test or breath analysis.
(3) The person must not, if the police officer's
power under subsection (2) is exercised, fail
without reasonable excuse to
(a) submit to the blood-sampling; and
(b) comply with such directions as the police
officer (or another police officer) may
give the person to enable the blood-
sampling to be carried out.
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(4) Without limiting the generality of
subsection (3)(b), the person may be directed
to
(a) go to such place (by such means and with
such persons) as the relevant police
officer nominates; and
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(b) submit to the blood-sampling at that
place.
(5) In proceedings for an offence under
subsection (3), the medical or physical condition
of the defendant at the time of the alleged
offence is not a reasonable excuse for the
purposes of that subsection unless the court is
satisfied by medical evidence that, by reason of
that condition
(a) it was not possible, practicable or safe for
the defendant to submit to the blood-
sampling; or
(b) the defendant would have suffered an
abnormally high level of pain, discomfort
or distress in submitting to the blood-
sampling; or
(c) it was otherwise unreasonable to expect
the defendant to submit to the blood-
sampling.
Division 3 Testing and analysis procedures
29. Rights and obligations on completion of breath
analysis, &c.
(1) As soon as practicable after a person has
submitted to a breath analysis
(a) the approved operator of the breath
analysing instrument must
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(i) read over to the person a written
statement, in the prescribed form
appropriate to the case, indicating
the concentration of alcohol in
the person's breath as determined
by the breath analysis; and
(ii) hand the person the written
statement; and
(b) the approved operator of the breath
analysing instrument must, if satisfied
that a blood-sampling could practicably
be begun within 3 hours after the relevant
time, inform the person that the person
may immediately request a blood-
sampling.
(2) On being handed the written statement, the
person may immediately request the approved
operator of the breath analysing instrument that a
blood-sampling be carried out if the person has
been informed pursuant to subsection (1)(b) that
he or she may make that request.
(3) If the person makes that request
(a) the approved operator of the breath
analysing instrument must arrange for
the person's blood-sampling to be begun
by a medical practitioner or nurse within
3 hours after the relevant time; and
(b) the person is not liable for any costs
incurred in making or attempting to make
those arrangements or in carrying out the
blood-sampling.
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30. Blood-sampling of person incapable of consenting,
and related duty of medical practitioner
(1) This section applies if
(a) a person is liable under this Act to submit
to a blood-sampling; and
(b) the person is being treated by a medical
practitioner; and
(c) the medical practitioner informs a police
officer that the person is, by reason of a
physical or medical condition, incapable
of consenting to the blood-sampling.
(2) The police officer may request the medical
practitioner to carry out the blood-sampling.
(3) It is the medical practitioner's duty to comply
with the request unless he or she is of the
opinion that to do so would be prejudicial to the
person's proper care or treatment.
(4) However, in order to comply with the request,
the medical practitioner may treat any sample of
blood that has already been taken from the
person in connection with the person's diagnosis
or treatment, and is available for analysis, as
having been taken pursuant to the request.
31. Duty of medical practitioner who refrains from
carrying out blood-sampling in patient's interest
(1) This section applies if a medical practitioner
refrains from carrying out a blood-sampling of a
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person under this Act on the grounds that to do
so would, in the medical practitioner's opinion,
be prejudicial to the person's proper care or
treatment.
(2) It is the medical practitioner's duty, if so
requested by a police officer, to
(a) express an opinion on the question
whether the person has or, if the person
is in hospital, had, at the time of his or
her admission to the hospital, alcohol in
his or her body; and
(b) answer, to the best of the medical
practitioner's ability, any relevant
questions that may be put to him or her
by the police officer regarding that
question.
32. Duty of medical practitioner who carries out blood-
sampling
(1) It is the duty of a medical practitioner who
carries out a blood-sampling under this Act to
comply with the provisions of this section in so
far as they apply to that medical practitioner.
(2) If the manner in which the blood-sampling is to
be carried out is prescribed, the sampling is to be
carried out in the prescribed manner.
(3) The blood sample is to be divided into 3 parts,
and this may be done either when the sample is
taken or afterwards.
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(4) As soon practicable after the blood sample is
divided into 3 parts, each of those parts is to be
enclosed in a container issued for the purposes
by an approved analyst.
(5) As soon as practicable after the 3 parts of the
blood sample have been enclosed in containers,
the containers are to be labelled in the prescribed
manner.
(6) Once the containers have been labelled in the
prescribed manner
(a) one of the containers is, as soon as
practicable, to be tendered to the subject
or, if the subject is in custody, delivered
to a police officer; and
(b) the other 2 containers are, within 10
days, to be delivered to an approved
analyst.
33. Follow-up procedure for blood-sampling of person
incapable of consenting
(1) This section applies if, under section 30, a
medical practitioner carries out a blood-sampling
of a person who is incapable of consenting to
that procedure.
(2) The police officer who requested that the blood-
sampling be carried out (or another police
officer) must, as soon as the police officer (or
other police officer) considers it practicable to
do so having regard to the person's condition
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(a) give written notice to the person that the
blood-sampling has been carried out; and
(b) tender to the person the part of the blood
sample referred to in section 32(6)(a);
and
(c) give the person written notice to the
effect that he or she may object to the
blood sample being analysed but that
doing so without a reasonable excuse is
an offence under this Act.
(3) The person is guilty of an offence if, after being
given the written notice referred to in
subsection (2)(c), he or she objects without
reasonable excuse to the sample being analysed.
Penalty: Fine not exceeding 30 penalty units.
34. Retention of blood sample during detention in
custody
(1) This section applies if a container containing
part of a blood sample is delivered to a police
officer under section 32(6)(a).
(2) If the manner in which the container is to be kept
is prescribed, the container is to be kept in the
prescribed manner.
(3) If the subject is released from custody within 24
hours after the blood sample was taken, the
container is to be tendered to the subject on his
or her release.
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(4) If the container is not tendered to the subject as
provided by subsection (3), it must, on a written
request made by or on behalf of the subject, be
delivered to
(a) the subject; or
(b) such other person at such place as is
specified in the request.
(5) A request under subsection (4) is to be made to
such person or at such place as may be
prescribed.
(6) If a request under subsection (4) is purportedly
signed by a legal practitioner acting for the
subject, a person receiving or acting on the
request is entitled to assume that it has been
made on behalf of the subject.
35. Analysis of blood samples by approved analyst
(1) This section applies if 2 containers containing
parts of a sample of blood taken from a person
under this Act are delivered to an approved
analyst.
(2) The approved analyst may analyse the part of the
sample contained in one of the containers.
(3) Except as a court may otherwise direct, the part
of the sample contained in the second container
must not be analysed or otherwise dealt with
except on the joint written request of
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(a) the subject (or a person acting on behalf
of the subject); and
(b) a legal practitioner acting on behalf of
the Crown.
(4) After analysing any part of the sample, the
approved analyst must prepare a report of the
analysis.
(5) The report is to state the concentration of alcohol
in the part of the sample analysed, expressed in
grams of alcohol in 100 millilitres of blood, as
determined by the analysis.
(6) Within 21 days after completing the report of the
analysis, the approved analyst must cause a copy
of the report to be
(a) served on the subject (or a person acting
on behalf of the subject); and
(b) provided to
(i) if the analysis was done pursuant
to a request under subsection (3),
a person specified by the legal
practitioner acting on behalf of
the Crown who jointly made the
request; or
(ii) if a request under subsection (3)
was not made, a prescribed police
officer.
(7) For the purposes of subsection (6)(a)
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(a) the copy of the report must be served by
posting it to the residential or postal
address, or address of business or
employment, of the person being served,
as last known to the approved analyst;
and
(b) the copy of the report is taken to have
been served when it is posted.
(8) For the purposes of subsection (6)(b), a copy of
the report may be provided by any means or in
any manner.
Division 4 Police powers
36. Ancillary police powers
(1) For the purposes of enforcing this Act, a police
officer may, according to circumstance, do any
one or any combination of the following:
(a) hail or signal a vessel;
(b) direct a person on a vessel to alter its
speed or direction;
(c) direct a person on a vessel to bring it to a
halt (with or without casting anchor or
securing a line to anything and with or
without shutting off any engines or
taking in any sails);
(d) direct a person not to move a vessel for a
period specified by the police officer;
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(e) direct a person to take a vessel to a place
nominated by the police officer;
(f) bring a police vessel alongside a vessel
(with or without securing lines to the
vessel);
(g) board and remain on a vessel;
(h) inspect, for the presence of an engine, a
vessel boarded by the police officer;
(i) direct a person to temporarily surrender
any key or lanyard required to start or
operate an engine on a vessel;
(j) request a person to produce a mariners
certificate, certificate of survey or other
document for the police officer's
inspection;
(k) direct a person to produce a mariners
certificate, certificate of survey or other
document within such period, of not less
than 7 days, and at such reasonable place
as the police officer specifies;
(l) direct a person to do (if necessary or
expedient, by or within a specified time)
one or more of the following:
(i) board, or disembark from, a
police vessel or other vessel;
(ii) go onto, or get off, a jetty or other
structure;
(iii) go to, or leave, a place ashore;
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(m) direct a person to remain (either for a
specified time or until further notice)
(i) on a police vessel or other vessel;
or
(ii) on a jetty or other structure; or
(iii) at a place ashore;
(n) detain a vessel for the purposes of
establishing or confirming the identity of
the vessel or the identity of persons on
the vessel;
(o) direct a person to remain at or leave the
scene of a maritime accident;
(p) direct a person to take or not take a
specified action at the scene of a
maritime accident;
(q) ask questions of persons on or near
vessels, or persons at or near the scene of
maritime accidents, and direct those
persons to answer those questions.
(2) A police officer enforcing this Act may be
assisted by such persons as he or she considers
necessary or expedient in the circumstances.
(3) Nothing in subsection (1) is to be taken as
limiting enforcement powers conferred on police
officers under other Acts.
(4) A person who is given a direction by a police
officer pursuant to subsection (1) must not,
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without reasonable excuse, fail to comply with
that direction.
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(5) The Crown is not liable for any damage that may
be caused to any vessel, cargo, structure or other
thing as a result of an act or omission of a police
officer exercising power under subsection (1) in
good faith.
37. Limitation on exercise of police powers
(1) It is the duty of a police officer exercising or
seeking to exercise power under this Act
(a) to have regard to the weather conditions
prevailing at that time; and
(b) not to endanger the safety of any person
or vessel; and
(c) not to detain a person or vessel for longer
than is reasonably necessary for the
power to be exercised; and
(d) not to direct, without good cause, that a
commercial vessel or fishing vessel be
taken to a place outside its usual or
scheduled area or routes of operation.
(2) It is the duty of a police officer requiring a
person to submit to a breath test under this Part
to ensure, as far as practicable, that
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(a) the breath test is carried out as soon as
practicable; and
(b) the breath test is carried out at the place
where the requirement was imposed or at
the nearest practicable place.
(3) However, a failure of duty under this section
does not invalidate the exercise of a power under
this Act.
38. Identification of offenders
(1) This section applies if a police officer reasonably
suspects that a person has contravened another
section of this Act.
(2) The police officer may require the person to state
one or more of the following:
(a) the person's name;
(b) the person's age;
(c) the person's address.
(3) If the power under subsection (2) is exercised,
the person must not
(a) refuse or fail to comply with the police
officer's requirement; or
(b) state a false name, age or address to the
police officer.
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Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(4) The police officer may arrest the person without
warrant if the police officer believes that a
person has contravened subsection (3).
39. Police may direct certain persons not to operate
vessels, &c.
(1) This section applies if a police officer reasonably
suspects that
(a) a person operating or apparently about to
operate a commercial vessel has
consumed alcohol; or
(b) a person operating or apparently about to
operate a vessel to which Division 2 of
Part 2 applies has more than the
permitted concentration of alcohol in the
person's blood.
(2) The police officer may
(a) direct the person not to operate the vessel
for a period of time specified by the
police officer; and
(b) give any person aboard the vessel such
directions as the police officer reasonably
considers necessary to ensure the safety
of
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(i) the vessel and persons aboard the
vessel; and
(ii) if applicable, other persons, other
vessels or structures; and
(c) if it appears to the police officer that no
person who may legally operate the
vessel is available, take such steps as the
police officer reasonably considers
necessary to ensure the safety of the
vessel and persons aboard the vessel
including, if circumstances require
(i) removing the vessel to a place of
safety (if necessary by operating
it or taking it in tow); or
(ii) temporarily preventing its further
operation.
(3) A person must not fail to comply with a
direction under subsection (2).
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(4) The Crown is not liable for any damage that may
be caused to any vessel, cargo, structure or other
thing as a result of an act or omission of a police
officer exercising power under subsection (2)(c)
in good faith.
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Division 5 Penalties
40. Interpretation of Division
In this Division
"disqualification order" means the
sentencing order by which a person is
disqualified;
"disqualify", a person convicted of an
offence, means
(a) for an offence under Division 1
of Part 2 or an obstructive
offence in respect of a
commercial vessel, prohibit the
person from operating
commercial vessels; and
(b) for an offence under Division 2
of Part 2 or an obstructive
offence in respect of a vessel
other than a commercial vessel,
prohibit the person from
operating vessels of such class or
description as the court imposing
the disqualification considers
appropriate in the circumstances;
"local mariners certificate" means a
mariners certificate issued by MAST;
"obstructive offence" means an offence
against section 21(2), section 22(3),
section 24(2), section 26(2),
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s. 41 Part 3 Enforcement of Alcohol Restrictions
section 28(3), section 33(3) or
section 38(3);
"relevant matters", in relation to the
commission of an offence against this
Act, includes
(a) the nature and seriousness of the
offence (including whether the
safety of any persons, vessels or
property was put at risk); and
(b) the circumstances in which the
offence was committed; and
(c) the offender's level of co-
operation as regards the
applicable investigation and
enforcement requirements of this
Act; and
(d) the offender's antecedents and
character; and
(e) the number and type of mariners
certificates, if any, held by the
offender.
41. Penalties for direct breaches of marine alcohol
restrictions
(1) This section applies if a court convicts a person
of an offence under Part 2 that is specified in
column 1 of the table at the foot of this section
("the table").
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(2) The court must, regardless of any other penalty it
may impose for the offence
(a) impose the fine that is specified in
column 3 of the table for the offence; and
(b) disqualify the person for the period that
is specified in column 4 of the table for
the offence.
(3) However, if the convicted person satisfies the
court that there are special circumstances why
the specified fine or period of disqualification
(or both) should not be imposed, the court may
impose a lesser fine or period of disqualification
(or both).
(4) For the purposes of subsection (2), the fine and
the period of disqualification are to be
ascertained by reference to the concentration of
alcohol in the convicted person's breath or blood
as specified in column 2 of the table.
(5) On disqualifying the convicted person, the court
may also do either or both of the following:
(a) suspend or cancel a local mariners
certificate held by the convicted person;
(b) prohibit the person from applying, for a
period specified by the court, for a local
mariners certificate specified by the
court.
(6) A suspension under subsection (5) may be for
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(a) the same period as the period of
disqualification; or
(b) such lesser period as the court thinks fit.
(7) For the purposes of exercising any of its
discretions under this section, the court may
have regard to such matters as it thinks fit in the
circumstances, including any relevant matters.
(8) The court is to cause copies or notice of its
sentencing orders to be given to MAST and
MAST may inform a corresponding maritime
authority of those orders.
Column 1 Column 2 Column 3 Column 4
Offence Concentration of Fine Disqualification
alcohol period
(in penalty units)
(grams of alcohol in (in months)
210L of breath or in
100ml of blood)
Section 13(1) Not more than 0.05 2 3
More than 0.05 but not 4 6
more than 0.100
More than 0.100 but not 6 9
more than 0.150
More than 0.150 but not 8 12
more than 0.200
More than 0.200 10 15
Section 16(1) More than 0.05 but not 2 3
more than 0.100
More than 0.100 but not 4 6
more than 0.150
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Column 1 Column 2 Column 3 Column 4
Offence Concentration of Fine Disqualification
alcohol period
(in penalty units)
(grams of alcohol in (in months)
210L of breath or in
100ml of blood)
More than 0.150 but not 6 9
more than 0.200
More than 0.200 8 12
42. Additional penalty of disqualification for certain
offences
(1) This section applies if a court convicts a person
of
(a) an offence under Part 2 that is not
specified in column 1 of the table at the
foot of section 41; or
(b) an obstructive offence.
(2) The court may, in addition to any other penalty it
may impose for the offence, disqualify the
person for a period not exceeding 3 years.
(3) The disqualification may be absolute, or limited
in its effect according to such factors, whether as
to time, geographic area, maritime activity or
otherwise, as the court thinks fit.
(4) On exercising its power under subsection (2), the
court may also do either or both of the
following:
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(a) suspend or cancel a local mariners
certificate held by the convicted person;
(b) prohibit the person from applying, for a
period specified by the court, for a local
mariners certificate specified by the
court.
(5) The suspension under subsection (4) may be
for
(a) the same period as the period of
disqualification; or
(b) such lesser period as the court thinks fit.
(6) In exercising its discretions under this section,
the court may have regard to such matters as it
thinks fit, including
(a) any relevant matters; and
(b) the weight that the court gives to the
factors of deterrence and punishment in
sentencing.
(7) The court is to cause copies or notice of its
sentencing orders to be given to MAST and
MAST may inform a corresponding maritime
authority of those orders.
43. Offence to operate vessel contrary to
disqualification order
(1) This section applies if a person is subject to a
disqualification order.
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(2) The person must not contravene the
disqualification order.
Penalty: Fine not exceeding 100 penalty units
and, in the case of a continuing
offence, a further fine not exceeding
10 penalty units for each day during
which the offence continues.
44. Offence to apply for local mariners certificate if
prohibited from doing so
(1) This section applies if, pursuant to
section 41(5)(b) or section 42(4)(b), a person is
prohibited from applying for a specified kind of
local mariners certificate for a specified period.
(2) The person must not, during the specified period,
apply for a local mariners certificate of the
specified kind.
Penalty: Fine not exceeding 100 penalty units.
(3) However, the person does not commit any
offence under subsection (2) by applying for a
restricted mariners certificate under Division 6
during the specified period.
Division 6 Restricted mariners certificates
45. Interpretation of Division
In this Division
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"disqualify" and "disqualification order"
have the same meaning as in Division 5;
"obstructive offence" has the same meaning
as in Division 5.
46. Disqualified person may apply for restricted
mariners certificate
(1) A person who is subject to a disqualification
order may apply to a court of petty sessions for
an order authorising the issue of a restricted
mariners certificate.
(2) A restricted mariners certificate is a mariners
certificate that authorises the person to operate a
vessel of a particular class or description, despite
being prohibited from doing so by the
disqualification order.
(3) The application must
(a) be made in writing; and
(b) state the name, age and residential
address of the applicant and an address
for service of notices; and
(c) contain details of every mariners
certificate held by the applicant at the
time of making the application (including
any that are suspended); and
(d) contain details of every other mariners
certificate held by the applicant during
the 10-year period immediately
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preceding the making of the application
(including any that were surrendered or
for any reason cancelled); and
(e) as far as practicable, give details of the
convictions, if any, recorded against the
applicant for offences against the laws of
Tasmania or any other jurisdiction in the
10-year period immediately preceding
the making of the application and
involving the operation of a vessel,
including
(i) the date on which each of the
offences was committed; and
(ii) the courts by which, and the dates
on which, the applicant was
convicted and particulars of
penalties imposed or other orders
made in respect of the offences
or, if any of the offences were
dealt with by infringement notice
of any kind, the infringement
notice penalties; and
(f) give details of the disqualification order
and state whether any similar
disqualification has previously been
imposed on the applicant (in Tasmania or
elsewhere) and, if so, the period of the
disqualification and the reasons for it;
and
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(g) state the grounds on which the applicant
asks for the order authorising the issue of
the restricted mariners certificate; and
(h) contain details of the severe and unusual
hardship that would be suffered by the
applicant, or the applicant's dependants,
if the application were refused; and
(i) state the conditions on which the
applicant asks the court to authorise the
issue of the restricted mariners
certificate; and
(j) be verified by statutory declaration made
by the applicant; and
(k) be accompanied by the prescribed fee, if
any; and
(l) be filed with the clerk of the court.
(4) At least 7 days before the application is to be
heard by the court, the applicant must give a
copy of the application to
(a) the chief executive officer of MAST; and
(b) the Commissioner of Police.
47. Courts may make order authorising issue of
restricted mariners certificate
(1) A court of petty sessions may, on an application
under section 46, make an order authorising the
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issue of a restricted mariners certificate if it is
satisfied that
(a) the applicant's disqualification is
imposing or will impose severe and
unusual hardship on the applicant or the
applicant's dependants; and
(b) the restricted mariners certificate should
be issued to mitigate or alleviate that
hardship; and
(c) the issue of the restricted mariners
certificate will not be contrary to the
public interest.
(2) However, the court is not to make an order under
subsection (1) in respect of a conviction for an
offence under this Act if
(a) the offence was committed during any
period of disqualification, or within 3
years after the end of any period of
disqualification, imposed under this Act;
or
(b) the offence was under section 13(1) or
section 16(1) and the offender had
alcohol in his or her blood of a
concentration equal to or greater than
0.200 grams of alcohol in 210 litres of
breath or 100 millilitres of blood; or
(c) the offence was an obstructive offence;
or
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(d) at the time of the offence the applicant
was not authorised by a mariners
certificate to operate, in the relevant
capacity, the vessel in respect of which
the offence was committed or cannot
satisfy the court that he or she would, but
for an unintentional failure to comply
with an administrative requirement, have
been so authorised to operate the vessel
in that capacity at that time; or
(e) at the time of the offence the applicant
was operating a vessel prescribed for this
paragraph.
(3) The court may make an order under
subsection (1) on such terms as the court thinks
fit and, without limiting the generality of this,
may provide for a restricted mariners certificate
to have general application or application that is
qualified by such factors as time, geographic
area or maritime activity.
(4) MAST must, on application by a person in
whose favour an order under subsection (1) has
been made and on payment of the prescribed fee,
if any, issue the person with a restricted mariners
certificate that conforms with the terms of the
order.
(5) MAST has power to do such things as may be
necessary or expedient for the purpose of
discharging its function under subsection (4).
(6) A court of petty sessions may, on application by
the holder of a restricted mariners certificate
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supported by such evidence as the court
considers necessary and appropriate in the
circumstances, vary the terms or conditions of
the certificate.
(7) A court that has dealt with, or is about to deal
with, the holder of a restricted mariners
certificate for an offence relating to the operation
of a vessel, or a court of petty sessions, may, on
its own initiative or on application made by or
on behalf of the Commissioner of Police or
MAST, vary the terms or conditions of the
restricted mariners certificate or revoke the
certificate.
48. Offence to contravene conditions of restricted
mariners certificate, &c.
(1) This section applies if a person (referred to in
this section as "the disqualified person") is
issued with a restricted mariners certificate under
section 47.
(2) The disqualified person must not
(a) contravene any term or condition of the
restricted mariners certificate; or
(b) contravene any order of a court made in
relation to the restricted mariners
certificate (including the order that
authorised the issue of that certificate).
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s. 49 Part 3 Enforcement of Alcohol Restrictions
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
(3) A person must not knowingly employ, or
knowingly cause or allow, the disqualified
person to operate a vessel in contravention of
(a) any term or condition of the restricted
mariners certificate; or
(b) any order of a court made in relation to
the restricted mariners certificate
(including the order that authorised the
issue of that certificate).
Penalty: Fine not exceeding 30 penalty units or
imprisonment for a term not exceeding
one month, or both.
Division 7 Supplementary provisions
49. Notice of offence
(1) This section applies if a person who holds a
mariners certificate issued by a corresponding
maritime authority is convicted of an offence
under this Act.
(2) MAST may inform the corresponding maritime
authority of the conviction and, if applicable, of
any disqualification or prohibition imposed on
the person for the offence.
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PART 4 EVIDENCE
50. Presumptions regarding breath tests and analyses,
&c.
(1) In any proceedings
(a) the concentration of alcohol in a sample
of blood taken from a person in
accordance with this Act is to be taken to
be the actual concentration of alcohol in
the person's blood when the sample was
taken, unless it is established on the
balance of probabilities that the
concentration of alcohol in the person's
blood at that time was not greater than
the permitted concentration; and
(b) the concentration of alcohol in a person's
breath as determined by a properly
carried out breath analysis under this Act
is to be taken to be the actual
concentration of alcohol in the person's
breath when he or she submitted to the
breath analysis, unless it is established on
the balance of probabilities that the
concentration of alcohol in the person's
breath at that time was not greater than
the permitted concentration; and
(c) if there is conflict between the evidence
referred to in paragraph (a) and the
evidence referred to in paragraph (b), the
evidence referred to in paragraph (a)
prevails.
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(2) If, in any proceedings, it is established that the
concentration of alcohol in the breath or blood of
a person who became liable to submit to a breath
analysis or blood-sampling under this Act was,
at any time within 4 hours after the relevant
time, equal to or not less than a particular
concentration (being a concentration not less
than the permitted concentration), that particular
concentration is to be taken to have been the
concentration of alcohol in the person's breath or
blood at the time of the relevant act of operating
a vessel unless it is established that the
concentration of alcohol in the person's breath or
blood at the time of that act was not greater than
the permitted concentration.
(3) If, in any proceedings against a person for an
offence under section 13(1), it is established that
the person became liable to submit to a breath
analysis or blood-sampling under this Act and
had alcohol in his or her breath or blood at any
time within 4 hours after the relevant time, it is
to be presumed, unless the contrary is proved,
that the person had alcohol in his or her breath or
blood at the time of the relevant act of operating
a vessel.
(4) For the purposes of this section, a breath analysis
is properly carried out if it is carried out by
means of a breath analysing instrument in proper
working order operated by an approved operator
in an approved way.
(5) In this section, unless the contrary intention
appears
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"approved way", of operating a breath
analysing instrument, means
(a) if the regulations prescribe an
approved way of operating the
instrument, the way so
prescribed; or
(b) if the regulations do not prescribe
an approved way of operating the
instrument but regulations under
the Corresponding Act prescribe
an approved way or manner of
operating the instrument, the way
or manner prescribed under the
Corresponding Act;
"proceedings" means proceedings for an
offence under this Act or proceedings on
a charge of manslaughter arising out of
the operation of a vessel;
"relevant act", of operating a vessel, in
relation to a person against or in respect
of whom proceedings are brought, means
the act of operating a vessel alleged to be
an ingredient of the offence or crime with
which the defendant is charged in the
proceedings.
51. Restrictions on admission of evidence of breath
analyses
Evidence of the concentration of alcohol in the
breath of a person as determined by a breath
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s. 52 Part 4 Evidence
analysing instrument is not admissible in any
proceedings unless
(a) such a statement as is referred to in
section 29(1) was read over to the
person, and handed to the person, on
completion of the analysis; and
(b) if the person made such a request as is
referred to in section 29(2)
(i) a sample of the person's blood
was taken by a medical
practitioner or nurse in
accordance with this Act and that
blood-sampling began within 3
hours after the relevant time; or
(ii) the person refused to submit to a
blood-sampling after appropriate
arrangements had been made
under that section in response to
the request.
52. Evidence as to carrying out breath analyses
If, in any proceedings, a person gives evidence
(a) that at a specified time and place he or
she carried out a breath analysis of a
person by means of a breath analysing
instrument; and
(b) that, at that specified time, the person
giving the evidence was an approved
operator; and
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Part 4 Evidence s. 53
(c) that, at that specified time, the instrument
was in proper working order
that evidence is prima facie evidence of the
particulars so stated and of the fact that, when
the analysis was carried out, the instrument was
in proper working order.
53. Evidence of matters related to failure to submit to
breath analysis
If, in any proceedings, a person gives evidence
(a) that at a specified time and place a
named person failed to submit to a breath
analysis; and
(b) that at that time and place a breath
analysis could have been properly carried
out by the person giving evidence by
means of a breath analysing instrument
that he or she then had with him or her;
and
(c) that at that time a breath analysing
instrument was in proper working order;
and
(d) that at that time the person giving the
evidence was an approved operator
that evidence is prima facie evidence of the
particulars so stated.
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s. 54 Part 4 Evidence
54. Evidentiary certificates and records
In any proceedings, an evidentiary certificate or
evidentiary record is prima facie evidence of the
matters contained in that evidentiary certificate
or evidentiary record.
55. Limitation on tendering of evidentiary certificates
and records
(1) An evidentiary certificate or evidentiary record
is not capable of being tendered in evidence by
or on behalf of a party to any proceedings unless,
at least 14 days before the hearing of the
proceedings (or such lesser period before the
hearing of the proceedings as the court may
approve), a copy of the evidentiary certificate or
evidentiary record was served on the other party
to the proceedings.
(2) If an evidentiary certificate or evidentiary record
is endorsed with a certificate of service
purporting to be signed by a person by whom a
copy of the evidentiary certificate or evidentiary
record was served, the certificate of service is
prima facie evidence of the particulars stated in
the certificate of service.
(3) Subject to this section, an evidentiary certificate
or evidentiary record may be tendered in
evidence in proceedings whether or not the
person by whom the evidentiary certificate or
evidentiary record was signed or made, or any
person who, under the supervision of the first-
mentioned person, was involved with the
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analysis to which the evidentiary certificate or
evidentiary record relates, is called as a witness
in those proceedings.
(4) Where a person by whom an evidentiary
certificate or evidentiary record was signed or
made, or any person who, under the supervision
of the first-mentioned person, was involved with
the analysis to which the evidentiary certificate
or evidentiary record relates, is called by the
defendant as a witness in proceedings, that
person may be cross-examined by the defendant
as to the facts or matters set out in the
evidentiary certificate or evidentiary record.
(5) In any proceedings, no evidence is to be given
by or on behalf of any person of the result of the
analysis of a sample of the person's blood that
was taken otherwise than pursuant to a
requirement or direction under this Act unless, at
least 4 days before the hearing (or such lesser
period before the hearing as the court may
approve), notice has been given in writing to the
prosecutor or the prosecutor's agent stating the
intention to give that evidence.
56. Section 177A of Evidence Act 2001 not to apply to
evidentiary certificate, &c.
Section 177A of the Evidence Act 2001 does not
apply in relation to an evidentiary certificate or
evidentiary record.
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s. 57 Part 4 Evidence
57. Evidence as to breath analyses, &c., inadmissible in
certain proceedings
(1) Except as is otherwise expressly provided in this
Act, the fact that a person has been convicted of
an offence under Part 2 or Part 3 is not
admissible as evidence in any proceedings that
the person was, at any time, drunk, under the
influence of intoxicating liquor or incapable of
operating a vessel.
(2) Despite anything in this or any other Act, where
a person, on being notified under section 33(2)
that a sample of the person's blood has been
taken for analysis, objects to the sample being
analysed, no evidence as to the analysis is
admissible in any proceedings to which he or she
is a party.
(3) This section has effect notwithstanding the
provisions of any contract of insurance and the
provisions of any such contract are, to the extent
that they exclude, limit, modify or restrict the
operation of this section, void.
(4) In this section
"proceedings" means all legal proceedings,
whether civil, criminal or arbitral.
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Part 5 Miscellaneous s. 58
PART 5 MISCELLANEOUS
58. Limitation on obligations of medical practitioners
Except as is otherwise expressly provided in this
Act, nothing in this Act is to be taken as
requiring a medical practitioner to carry out a
blood-sampling in respect of any person.
59. Avoidance of certain provisions in insurance
contracts
A provision of a contract or other agreement is
void to the extent that it purports to exclude or
limit the liability of an insurer under a contract
of insurance in the event of a vessel owner or
vessel operator
(a) being convicted of an offence under this
Act; or
(b) having alcohol in his or her breath or
blood, or more than a specified
concentration of alcohol in his or her
breath or blood, as indicated by breath
test, breath analysis or blood-sampling
under this Act.
60. Service of documents
Except as is otherwise expressly provided in this
Act, a notice or other document is effectively
given to or served on a person under this Act if
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(a) in the case of a natural person, it is
(i) handed to the person; or
(ii) left at, or sent by post to, the
person's postal or residential
address or place of business or
employment last known to the
giver or server of the notice or
document; or
(iii) faxed to the person's fax number;
or
(iv) emailed to the person's email
address; and
(b) in the case of any other person, it is
(i) left at, or sent by post to, the
person's principal or registered
office or principal place of
business; or
(ii) faxed to the person's fax number;
or
(iii) emailed to the person's email
address.
61. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
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(2) Without limiting the generality of subsection (1),
the regulations may
(a) provide for fees and charges payable in
respect of any matter under the Act; and
(b) prescribe, or provide for the form and
content of, forms; and
(c) prescribe, for this Act, any matter that
corresponds to a matter in respect of
which regulations may be made under
the Corresponding Act.
(3) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(4) The regulations may authorise any matter to be
from time to time determined by the
Commissioner of Police or supervising analyst.
(5) Regulations made under section 31 of the
Corresponding Act for or in respect of any
provision or matter under that Act may also be
used and have application for the purposes of a
corresponding provision or matter under this Act
and, to that end, those regulations may, if
necessary or expedient, be modified or adapted
so as to enable those regulations to have such
use or application.
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s. 62 Part 5 Miscellaneous
62. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Police and Emergency
Management; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Police
and Emergency Management.
63. Consequential Amendments
The legislation specified in Schedule 2 is
amended as specified in that Schedule.
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sch. 1
SCHEDULE 1 EVIDENTIARY CERTIFICATES AND
RECORDS
Sections 3 and 54
PART 1 CERTIFICATES
1. A certificate that
(a) purports to be signed by the supervising
analyst under this Act or the
Corresponding Act; and
(b) contains any particulars, relating to a
breath analysing instrument, that are
required to be contained in such a
certificate by the regulations (or by
regulations under the Corresponding
Act).
2. A certificate that
(a) states that, on the day and at the time
stated in the certificate, the signatory
took a sample of the blood of the person
named in the certificate; and
(b) states that when that sample was so taken
the signatory was a medical practitioner
or nurse; and
(c) contains particulars of the manner in
which the sample was taken or of any
action taken by the signatory consequent
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upon, or in relation to, the taking of that
sample.
3. A certificate that
(a) states that a container containing a part of
a sample of blood taken from the person
named in the certificate was kept at a
particular place during a particular
period; and
(b) contains particulars of the manner in
which the container was kept; and
(c) states that the person from whom the
sample was taken was detained in
custody during a particular period and
specifies the place at which the person
was so kept in custody; and
(d) states the time at which the container was
delivered to any person and contains
particulars of the request pursuant to
which it was so delivered; and
(e) states that the signatory was a police
officer at the time the container was kept
as mentioned in the certificate.
4. A certificate that
(a) states that at a particular time and place a
container containing a part of a sample of
blood was delivered by the signatory to
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sch. 1
the person named in the certificate and
stated therein to be an approved analyst;
and
(b) contains particulars with respect to the
container or any label or marks on the
container; and
(c) contains particulars with respect to the
manner in which the container was kept
or otherwise dealt with before being so
delivered; and
(d) states that the person by whom the
container was so delivered was at that
time a police officer.
5. A certificate that
(a) contains particulars of the result of an
analysis of a sample of blood done by, or
under the supervision of, the signatory;
and
(b) contains particulars with respect to the
container in which the sample was
received by the signatory, and any labels
or markings on the container; and
(c) states that when the analysis was done
the signatory was an approved analyst.
6. A certificate stating
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(a) that the person named in the certificate
submitted to a breath analysis carried out
by the signatory; and
(b) that when the breath analysis was carried
out the signatory was an approved
operator; and
(c) that the apparatus used by the signatory
to carry out the breath analysis was a
breath analysing instrument within the
meaning of this Act and that the
instrument was in proper working order;
and
(d) that in carrying out the analysis the
signatory operated the breath analysing
instrument in the prescribed manner; and
(e) that the analysis was made on the day
and completed at the time stated in the
certificate; and
(f) that the concentration of alcohol in 210
litres of breath, as determined by the
analysis to be present in the breath of the
person who submitted to the analysis, is
that specified in the certificate; and
(g) that the statement required by section 29
to be read over to the person, and handed
to the person, was so read over to and
handed to the person.
7. A certificate stating
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(a) that at a particular time and place the
person named in the certificate was
required or directed by the signatory to
submit to a breath analysis; and
(b) that the person then failed or refused to
submit to a breath analysis in accordance
with the requirement or direction; and
(c) that at that time and place a breath
analysis could have been properly carried
out by the signatory by means of a breath
analysing instrument that he or she then
had with him or her; and
(d) that at that time that breath analysing
instrument was in proper working order;
and
(e) that at that time the signatory did or did
not inform the person that he or she
could elect to submit to the taking of a
sample of blood for analysis instead of
submitting to a breath analysis; and
(f) that the person did or did not so elect to
the taking of a sample of blood for
analysis; and
(g) that at that time the signatory was an
approved operator.
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PART 2 RECORDS
1. A record that purports to be a record kept by an
approved operator as prescribed and containing
any particulars relating to the performance by
that approved operator of his or her functions
under this Act.
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SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
Section 63
Criminal Law (Detention and Interrogation) Act 1995
1. Section 5 is amended by omitting subsection (2)
and substituting the following subsection:
(2) This section does not apply to
questioning or investigation in
connection with an offence under
(a) section 4, 6 or 14 of the Road
Safety (Alcohol and Drugs) Act
1970; or
(b) section 13(1), 16(1), 21(2), 22(3),
24(2), 26(2), 28(3), 33(3) or 38(3)
of the Marine Safety (Misuse of
Alcohol) Act 2006.
2. Section 6 is amended by omitting subsection (8)
and substituting the following subsection:
(8) This section does not apply to
questioning or investigation in
connection with an offence under
(a) section 4, 6 or 14 of the Road
Safety (Alcohol and Drugs) Act
1970; or
(b) section 13(1), 16(1), 21(2), 22(3),
24(2), 26(2), 28(3), 33(3) or 38(3)
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of the Marine Safety (Misuse of
Alcohol) Act 2006.
3. Section 14(5)(b) is amended by inserting "or
Marine Safety (Misuse of Alcohol) Act 2006"
after "Road Safety (Alcohol and Drugs) Act
1970".
Justices Act 1959
1. Section 34(1) is amended by omitting paragraph
(c) and substituting the following paragraph:
(c) in the case of an offence against the
Marine Safety (Misuse of Alcohol) Act
2006 or Road Safety (Alcohol and Drugs)
Act 1970, an approved operator under
those Acts
Road Safety (Alcohol and Drugs) Act 1970
1. Section 12(3) is amended by inserting "diagnosis
or" after "with, the medical".
2. Section 21(b) is amended by omitting
"percentage" and substituting "concentration".
3. Section 31 is amended as follows:
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(a) by omitting "The Governor may" and
substituting "(1) The Governor may";
(b) by inserting after subsection (1) the
following subsections:
(2) If the Related Act expressly or
impliedly provides, a regulation
made pursuant to subsection (1)
for in respect of any provision or
matter under this Act may also be
used and have application for the
purposes of a corresponding
provision or matter under the
Related Act and, to that end, the
regulation may, if necessary or
expedient, be modified or adapted
so as to enable the regulation to
have such use or application.
(3) The regulations may be made so
as to apply differently according
to such factors as are specified in
the regulations.
(4) The regulations may authorise
any matter to be from time to
time determined by the
Commissioner of Police or
supervising analyst.
(5) In this section
"Related Act" means the
Marine Safety (Misuse of
Alcohol) Act 2006.
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Victims of Crime Compensation Act 1994
1. Section 3 is amended by inserting after
paragraph (e) in the definition of "serious
offence" the following paragraph:
(ea) an offence under the Marine Safety
(Misuse of Alcohol) Act 2006;
Youth Justice Act 1997
1. Section 3(1) is amended by inserting "Marine
Safety (Misuse of Alcohol) Act 2006, the" after
"under the" in paragraph (c)(ii) of the definition
of "prescribed offence".
90 Government Printer, Tasmania