EBELING and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT AND MAJOR INFRASTRUCTURE [2026] WASAT 71

[2026] WASAT 71 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : WESTERN AUSTRALIAN MARINE ACT 1982 (WA) CITATION : EBELING and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT AND MAJOR INFRASTRUCTURE [2026] WASAT 71 MEMBER : MS C CONLEY, MEMBER HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 JUNE 2026 FILE NO/S : CC 15 of 2026 BETWEEN : THOMAS CHARLES EBELING Applicant AND CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT AND MAJOR INFRASTRUCTURE Respondent Catchwords: Obstruction notice issued to owner of vessel under the Navigable Waters Regulations 1958 (WA) - Whether Tribunal has jurisdiction to review the issue of the obstruction notice under s 63C(2) of the Western Australian Marine Act 1982 (WA) - Application dismissed for want of jurisdiction Legislation: Criminal and Found Property Disposal Act 2006 (WA) Navigable Waters Regulations 1958 (WA), reg 40, reg 40C(2), reg 40C(2)(b), reg 40C(2)(c), reg 40D(2), reg 40J, reg 40K, reg 40K(1), reg 40K(2), -- 1 of 22 -- [2026] WASAT 71 Page 2 reg 40K(4), reg 40L, reg 42, reg 44, reg 44(1), reg 44(2), reg 44(3), reg 45, reg 47G(5), Pt 5 State Administrative Tribunal Act 2004 (WA), s 17, s 60(2) Western Australian Marine Act 1982 (WA), s 58B, s 58B(1), s 61, s 61(1), s 61(2), s 61(3), s 61(4), s 61(4)(b), s 62, s 62(1), s 63, s 63A(1), s 63B(1), s 63B(2), s 63B(3), s 63B(4), s 63B(5), s 63C, s 63C(1), s 63C(2), s 63(3), s 63(3)(a), s 114, s 114(1A), s 114(1D), s 122(1), s 122(2), s 122(3), s 124A, Pt 3, Pt 5 Result: Application dismissed Category: B Representation: Counsel: Applicant : In Person Respondent : Mr J Pretorius Solicitors: Applicant : N/A Respondent : Department of Transport and Major Infrastructure Case(s) referred to in decision(s): Arrow Shipping Company Limited v Tyne Improvement Commissioners [1894] AC 508 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian National University v Lewins [1996] FCA 594; (1996) 138 ALR 1 Chapmans Limited v Australian Stock Exchange Limited (1996) 67 FCR 402 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 -- 2 of 22 -- [2026] WASAT 71 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 Mr Ebeling has applied to the Tribunal under s 63C(2) of the Western Australian Marine Act 1982 (WA) (WA Marine Act) for the review of a decision made by the delegate1 of the Chief Executive Officer of the Department of Transport and Major Infrastructure (CEO) to issue Mr Ebeling with an obstruction notice under the Navigable Water Regulations 1958 (WA) (Navigable Waters Regulations) in relation to his vessel (Decision). 2 For the reasons set out below, the Tribunal does not have jurisdiction under s 63C(2) of the WA Marine Act to review the Decision. Issue for determination 3 The sole issue for determination is a preliminary issue as to whether or not the Tribunal has jurisdiction to review the Decision. Legal framework 4 Under s 63C of the WA Marine Act, a person aggrieved may apply to the Tribunal for a review of the following:2 (a) a decision under section 61(1) to detain a vessel; (b) a notice under section 61(4)(b) or 63(3)(a) given in relation to a vessel; (c) a declaration under section 63B(3) that a vessel is forfeited to the State. Proceedings in the Tribunal 5 On 13 February 2026, the Tribunal ordered the parties to file written submissions in relation to the preliminary issue as to whether the Tribunal has jurisdiction to review the Decision and for the preliminary issue to be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 6 The following documents were filed with the Tribunal and taken into evidence: 1 See the CEO's power of delegation in WA Marine Act, s 124A. 2 WA Marine Act, s 63C(1). -- 3 of 22 -- [2026] WASAT 71 Page 4 (a) 'Obstruction notice proposed removal - regs 40J, 40K and 40L' dated 6 January 2026 (Obstruction Notice); (b) various communications between Ms Rosemaree Bell, an officer of the Department of Transport and Major Infrastructure (DTMI or Department), and Mr Ebeling in January, February and May 2026; and (c) an application to the Tribunal lodged on 12 January 2026 (Application); 7 Each party filed written submissions (Submissions) in accordance with the orders made by the Tribunal.3 8 On 21 May 2026 the Tribunal held a directions hearing to clarify some issues relating to the Submissions.4 Findings of fact 9 Based on the documentary evidence before the Tribunal and the Submissions of the parties, I find: (a) Mr Ebeling is the owner of a vessel called 'Georgia' with a registration of BX360 (Vessel); (b) on 8 December 2025, the CEO became aware that the Vessel was located aground at the Maylands Boat Ramp; (c) on 6 January 2026, the CEO signed the Obstruction Notice in relation to the Vessel which stated relevantly as follows: The vessel is located at the Maylands Boat Ramp. The vessel is aground with starboard side of the vessel is semi-submerged in water and appears to be abandoned. The vessel is likely to become a hazard to safety and is obstructing the safe and lawful use of state waters and the Maylands Boat Ramp. (d) the Obstruction Notice proposed the removal of the Vessel 7 days after the Obstruction Notice was given; (e) the Obstruction Notice also stated: 3 Applicant's Written Submissions filed on 27 February 2026 (Mr Ebeling's Submissions) and Respondent's Submissions in Reply to the Preliminary Issue filed on 13 March 2026 (CEO's Submissions). 4 See further below at paragraphs [68] to [74]. -- 4 of 22 -- [2026] WASAT 71 Page 5 NOTICE TO OWNER 1. In the opinion of the CEO the object is an obstruction within the meaning of Part 5 of the Regulations. 2. The CEO proposes to remove the object from the location on or from the date indicated above using the method or methods indicated above. 3. The CEO may deal with the object in accordance with Part 5 of the Regulations. This may include storing, repairing, treating, destroying, selling or otherwise disposing of the object. 4. Any reasonable costs and expenses incurred by DTMI relating to the removal, storage, management, destruction, sale or disposal of the object, as determined by the CEO, are a debt due to the State and a first charge in priority to all other claims on the object. (f) on 8 January 2026, the Obstruction Notice was served on Mr Ebeling by email from Ms Bell. The email also stated that Mr Ebeling had 7 days to remove the Vessel and that, if the Vessel was not removed, then the CEO would remove the Vessel; (g) on 9 January 2026, Mr Ebeling sent an email to Ms Bell objecting to the issue of the Obstruction Notice; (h) on 9 January 2026, Ms Bell sent an email to Mr Ebeling advising inter alia, that the Obstruction Notice under reg 40 remained valid and enforceable; that the Vessel was obstructing the Maylands Boat Ramp; and that, unless the Vessel was removed within the timeframe specified, the CEO would proceed with removal; (i) on 9 January 2026, Mr Ebeling sent a further email to Ms Bell objecting to the issue of the Obstruction Notice; (j) on 12 January 2026, Ms Bell sent an email to Mr Ebeling which states relevantly: The Notice issued under regulation 40K remains valid and enforceable. Under Part 5 of the Regulations, the Chief Executive Officer (CEO) is authorised to remove a vessel that constitutes an obstruction after seven (7) days from the date the notice was given. -- 5 of 22 -- [2026] WASAT 71 Page 6 Photographs attached clearly demonstrate that your [V]essel, GEORGIA (BX360), is obstructing the Maylands Boat Ramp. This situation impacts safe navigation and public access, and the CEO is required to act in accordance with their statutory obligations. Please be aware that any reasonable costs and expenses incurred by the Department in relation to removal, storage, management, destruction, sale or disposal of the vessel, as determined by the CEO, will constitute a debt due to the State and a first charge on the vessel. Accordingly, unless the vessel is removed by you within the timeframe specified, the Department will proceed with the removal as authorised. (k) on 12 January 2026, Mr Ebeling applied to the Tribunal for a review of the Decision; (l) on 13 January 2026 Ms Bell sent an email to Mr Ebeling notifying him that the Vessel had not been detained under s 61 of the WA Marine Act but that Mr Ebeling had been given a notice under reg 40K of the Navigable Waters Regulations to remove the Vessel; (m) on 20 January 2026, the Vessel was refloated and moved to a DTMI mooring; (n) on 4 February 2026, Mr Ebeling sent an email to Ms Bell in which he complained that the CEO had removed the Vessel and thereby deprived him of an opportunity to refloat the Vessel; (o) in a letter dated 12 February 2026, Ms Bell notified Mr Ebeling that should he wish the Vessel to be returned to him he would need to pay the costs incurred by the CEO which amounted to $15,390 plus GST; and (p) on 18 May 2026 Mr Ebeling sent a letter to Ms Bell in which he stated, inter alia, that the admission that the DTMI had moved the Vessel and continued to hold it at a DTMI mooring and return of the Vessel only upon payment of $15,390 plus GST established an act of detention and not the removal of an obstruction. 10 The photographs of the Vessel referred to in Ms Bell's email of 12 January 2026 are reproduced below: -- 6 of 22 -- [2026] WASAT 71 Page 7 -- 7 of 22 -- [2026] WASAT 71 Page 8 11 On the basis of the photographs of the Vessel referred to above in paragraph [10], I am satisfied and find that the Vessel was an obstruction for the purposes of paragraphs (a) and (d) of the definition of that term in reg 40C(2) of the Navigable Waters Regulations for the reasons outlined in the Obstruction Notice. Contentions of the Parties 12 Mr Ebeling's contentions may be summarised as follows: (a) there is no clear authority in reg 40K of the Navigable Waters Regulations to detain a vessel nor withhold possession pending payment; and (b) the CEO's reliance on reg 40K cannot lawfully be used to achieve the functional outcome of detention which is governed exclusively by s 61 of the WA Marine Act; (c) the WA Marine Act should not be construed in a manner that allows review rights and procedural protections to be bypassed in reliance on an alternative regulatory mechanism; (d) the Vessel was detained by the respondent and that detention is, in substance, a decision under s 61(1) of the WA Marine Act which is reviewable under s 63C(2) of the WA Marine Act; (e) once the Vessel was held beyond the point of obstruction clearance, this fell outside the scope of reg 40K and the vessel was detained; and (f) Mr Ebeling is an aggrieved person. 13 The CEO's contentions may be summarised as follows: (a) the Tribunal derives its jurisdiction to review administrative decisions from enabling Acts; and (b) identifying a vessel as an obstruction and providing the owner of the vessel with an obstruction notice is not a reviewable decision for the purposes of s 63C(2) of the WA Marine Act. -- 8 of 22 -- [2026] WASAT 71 Page 9 Examination of the Issue The scope of the review jurisdiction of the Tribunal under the WA Marine Act and the Navigable Waters Regulations 14 The Tribunal has jurisdiction to review a matter that the State Administrative Tribunal Act 2004 (WA) (SAT Act) or an enabling Act gives to the Tribunal.5 15 The jurisdiction of the Tribunal to review decisions made under the WA Marine Act is limited to the decisions referred to in s 63C(1) of the WA Marine Act,6 namely: (a) a decision under s 61(1) to detain a vessel (that is, a vessel the CEO believed on reasonable grounds to be an unsafe vessel); (b) a notice under s 61(4)(b) or s 63(3)(a) given in relation to a vessel (specifying the conditions that the CEO determines are required to be complied with before the vessel may be released from detention and returned and the period within which those conditions are to be complied with); and (c) a declaration under s 63B(3) that a vessel (detained under s 61) is forfeited to the State. 16 The jurisdiction of the Tribunal to review decisions made under the Navigable Waters Regulations applies only to a decision of the CEO to refuse, cancel or suspend a recreational skipper's ticket.7 17 The issue of an obstruction notice in the exercise of power under reg 40K of the Navigable Waters Regulations (including the formation of an opinion that a vessel is an obstruction) (issue of obstruction notice) is not a decision which is reviewable under s 63C(2) of the WA Marine Act. There is also no other provision in the WA Marine Act or the Navigable Waters Regulations which confers jurisdiction on the Tribunal to review the issue of an obstruction notice. 18 Accordingly, the Tribunal does not have power to review the issue of an obstruction notice. 19 However, that is not the end of the matter, because the substance of Mr Ebeling's contentions is that the decision to issue him with the 5 SAT Act, s 17. 6 WA Marine Act, s 63C(2). 7 Navigable Waters Regulations, reg 47G(5). -- 9 of 22 -- [2026] WASAT 71 Page 10 Obstruction Notice is, in effect, a decision to detain the Vessel under s 61 of the WA Marine Act. The characterisation of the Decision 20 The question as to whether a particular decision is made under an Act or some other statutory instrument will depend on an examination of the Act or statutory instrument itself. In Australian National University v Lewins [1996] FCA 594; (1996) 138 ALR 1 at 14 Lehane J, with whom Kiefal J agreed, said: … a decision is 'made' under an Act if it is 'a decision which a statute requires or authorises' or 'one for which provision is made by or under a statute': Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 327; per Mason CJ. In CEA Technologies Pty Ltd and Civil Aviation Authority (1994) 51 FCR 329; 122 ALR 724 Neaves J accepted (at FCR 333, 337) that a decision meets that test only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives force or effect[.] 21 The question as to whether a decision is made under a particular Act or other statutory instrument ' must be determined as one of substance'.8 22 It is necessary therefore to examine the provisions of the Navigable Waters Regulations relating to the removal and storage of a vessel which is an obstruction, and the provisions of the WA Marine Act relating to the detention of an unsafe vessel, to determine the proper characterisation of the Decision. The power to remove and store obstructions 23 It is an offence contrary to the Navigable Waters Regulations for a person to cause or allow a vessel or any other thing to be an obstruction referred to in reg 40C(2)(b) or (c) or any other obstruction.9 Regulation 40C(2) of the Navigable Waters Regulations provides that: (2) A vessel or other thing is an obstruction if it - (a) is, or is likely to become, a hazard to safety or the environment; or (b) is moored, berthed or otherwise placed in contravention of the marine legislation; or 8 Chapmans Limited v Australian Stock Exchange Limited (1996) 67 FCR 402 at 409E. 9 Navigable Waters Regulations, reg 40D(2). -- 10 of 22 -- [2026] WASAT 71 Page 11 (c) uses a pen, berth or mooring in contravention of a requirement to pay a berthing due or other charge for the use of the pen, berth or mooring, as specified in a notice given under the marine legislation; or (d) otherwise obstructs, or is likely to obstruct, the safe or lawful use of State waters or a thing in, on or over State waters (such as a jetty, mooring or berth). 24 If the CEO forms an opinion that a vessel is an obstruction, then the CEO must:10 (a) take reasonable steps to establish the identity of the relevant owner of the vessel; and (b) if the identity of the relevant owner is established - give an obstruction notice to the relevant owner; and (c) if the identity of the relevant owner is not established - make the obstruction notice publicly available for at least 7 days. 25 An obstruction notice must include the information set out in reg 40L of the Navigable Waters Regulations, namely: (a) a description of the vessel or other thing; (b) an outline of the facts and any other circumstances forming the basis of the CEO's opinion that the vessel or other thing is an obstruction; (c) the date and method of the removal or proposed removal of the obstruction; (d) if the obstruction has been removed - (i) the place to which the obstruction was moved; and (ii) that the obstruction may be returned to the owner if the CEO is paid the reasonable costs and expenses for the obstruction, if any, before the date specified; (e) that the CEO may deal with the obstruction in accordance with this Part; (f) that the reasonable costs and expenses for the obstruction are - (i) a debt due to the State; and 10 Navigable Waters Regulations, reg 40K(1). -- 11 of 22 -- [2026] WASAT 71 Page 12 (ii) a first charge in priority to all other claims on the obstruction. 26 The CEO may remove the vessel 7 days after the obstruction notice is given,11 or at any time if the CEO is satisfied that the vessel is an immediate danger to safety or the environment and an obstruction notice is given to the relevant owner of the vessel.12 27 The CEO may, for the purposes of, or after, the removal of an obstruction, deal with the obstruction as follows: sell or otherwise dispose of the obstruction; store the obstruction; repair or treat the obstruction; or destroy the obstruction, but only if the CEO considers that the destruction is reasonable in the circumstances.13 28 After an obstruction is removed, the CEO may: (a) return the obstruction to a person who: 14 (i) establishes, to the satisfaction of the CEO, that they are the owner of the obstruction; and (ii) pays to the CEO the reasonable costs and expenses for the obstruction, if any; and (b) determine the time at which, and the way in which, the obstruction must be returned to the person.15 29 The reasonable costs and expenses for an obstruction are:16 (a) a debt due to the State by the person responsible for the vessel or other thing that is, or was, the obstruction; and (b) recoverable by the State from the person responsible in a court of competent jurisdiction; and (c) a first charge in priority to all other claims on the vessel or other thing that is, or was, the obstruction. 11 Navigable Waters Regulations, reg 40K(2). 12 Navigable Waters Regulations, reg 40K(4). 13 Navigable Waters Regulations, reg 42. 14 Navigable Waters Regulations, reg 44(1). 15 Navigable Waters Regulations, reg 44(3). 16 Navigable Waters Regulations, reg 45. -- 12 of 22 -- [2026] WASAT 71 Page 13 30 The CEO may decide to waive or reduce the amount payable for the reasonable costs and expenses for the obstruction if the CEO considers it appropriate in the circumstances.17 The power to detain unsafe vessels 31 Section 58B(1) of the WA Marine Act provides that a person who is the owner or master of a pleasure vessel or prescribed vessel must ensure that the vessel is not operated if it is an unsafe vessel. A contravention of s 58B(1) is an offence. It is also an offence contrary to s 62(1) of the WA Marine Act to operate, or permit the operation of, a detained vessel which has not been released from detention without the authorisation of the CEO. 32 The CEO may detain a pleasure vessel or prescribed vessel and bring it, or cause it to be brought, to a port or to another place that the CEO considers appropriate, if the CEO believes on reasonable grounds that the vessel is an unsafe vessel.18 33 If the CEO detains a vessel in the exercise of power under s 61(1) of the WA Marine Act, the CEO must give an initial notice, within 7 days after the day on which the vessel was detained, to the master of the vessel or, if the master of the vessel cannot be located, the person who had possession or control of the vessel immediately before it was detained.19 The initial notice must: identify the vessel; state that the vessel has been detained because it is believed to be an unsafe vessel; specify the grounds for that belief; and provide the contact details of an officer of the Department who can provide further information.20 34 Within 21 days of detention, the CEO must do one of the following:21 (a) designate a person under section 63(2) to inspect the vessel and provide a report on it; (b) give a further notice to the person given the initial notice specifying - 17 Navigable Waters Regulations, reg 44(2). 18 WA Marine Act, s 61(1). 19 WA Marine Act, s 61(2). 20 WA Marine Act, s 61(3). 21 WA Marine Act, s 61(4). -- 13 of 22 -- [2026] WASAT 71 Page 14 (i) the conditions that the chief executive officer determines are required to be complied with before the vessel may be released from detention and returned; and (ii) the period (which cannot be less than 3 months) within which those conditions are to be complied with; or (c) authorise the vessel to be released from detention and returned. 35 If a designated person inspects and reports on the vessel to the CEO, then the CEO must, within 14 days after being provided with the report, give a further notice in relation to the vessel or authorise the vessel to be released from detention and returned.22 36 The CEO must authorise a detained vessel to be released from detention and returned if satisfied of any of the matters set out in s 63A(1) of the WA Marine Act, namely: the vessel is not an unsafe vessel; or the grounds for the belief that the vessel was an unsafe vessel specified in the initial notice no longer apply; or the conditions specified in a further notice have been complied with. 37 If a vessel is detained under s 61 and the CEO is not liable to pay costs and compensation to the owner under s 122(3) of the WA Marine Act, then the owner of the vessel is liable to pay to the CEO the reasonable costs of and incidental to the detention and inspection of the vessel, which costs are, without prejudice to any other remedy, recoverable by the CEO in a court of competent jurisdiction.23 38 If the circumstances set out in s 63B(1) or (2) exist, then the CEO may declare, by order, that the vessel is forfeited to the State and, where a declaration is made, the vessel is forfeited to the State (subject to the right of review in the Tribunal) and may be disposed of under the Criminal and Found Property Disposal Act 2006 (WA).24 Was the Decision made under the Navigable Waters Regulations or the WA Marine Act? 39 The regulations in Part 5 of the Navigable Waters Regulations (including regs 40K, 40L, 42 and 44) are made under the authority of 22 WA Marine Act, s 63(3). 23 WA Marine Act, s 122(1) and (2). 24 WA Marine Act, s 63B(3) - (5). -- 14 of 22 -- [2026] WASAT 71 Page 15 s 114(1A) of the WA Marine Act which provides that regulations may be made, inter alia, to provide for the following: (i) the removal from State waters, or from land immediately adjacent to State waters, of things that, in the opinion of the chief executive officer, are or are likely to become hazards or obstructions; (ii) the storage and the destruction, sale or other disposal of things that are removed, including the acquisition of good title to things that are sold or otherwise disposed of; (iii) the application of the proceeds of sale of things that are removed; (iv) the creation of a charge in respect of things that are removed and the declaration, under the Personal Property Securities Act 2009 (Commonwealth) section 73(2)(a), that section 73(2) of that Act applies to the charge; (v) the recovery of costs incurred in the removal, storage, destruction, sale or disposal, including costs of work done on the removed thing and legal or other professional fees and disbursements for effecting the removal, storage, destruction, sale or disposal; 40 Regulations made for the purposes of subsection (1A)(i) of the Navigable Waters Regulations in relation to the removal of vessels:25 (a) must provide that a vessel cannot be removed unless - (i) the chief executive officer is satisfied that the vessel is an immediate danger to safety or the environment; or (ii) the chief executive officer has given the owner of the vessel at least 7 days' notice of the proposed removal; and (b) must provide that, if a vessel is removed without notice as described in paragraph (a)(ii), the chief executive officer must give notice of the removal to the owner of the vessel; and (c) may provide for the details to be included in notice given under paragraph (a)(ii) or (b). 41 I do not accept Mr Ebeling's contention that the Vessel was detained by the CEO and that such detention is, in substance, a decision under s 61 of the WA Marine Act. I am satisfied and find that the Vessel was removed and stored under Part 5 of the Navigable Waters Regulations and that it was not detained under s 61 of the WA Marine Act. I am also 25 WA Marine Act, s 114(1D). -- 15 of 22 -- [2026] WASAT 71 Page 16 satisfied that the Decision was a decision to issue an obstruction notice. This is for the reasons set out below in paragraphs [42] - [51]. 42 First, detention on the one hand and removal and storage on the other hand both essentially involve taking property that is owned by someone else and holding onto that property before the property is given back to the owner. The practical effect of removal and storage of a vessel is the same as detention of a vessel, in that the owner is deprived of their right to possess and operate the vessel. However, that does not mean that a decision to issue an obstruction notice under the Navigable Water Regulations for the removal and storage of a vessel is a decision to detain the vessel under s 61 of the WA Marine Act. This is because there are different powers and processes in place in respect of each type of decision. 43 Second, the WA Marine Act makes a deliberate distinction between the powers and processes for: (a) the detention of an unsafe vessel (which may involve detention in situ or bringing the vessel to a port or other appropriate place) until the vessel is released and returned to the owner or forfeited; and (b) the removal of a vessel which is an obstruction and the storage of that vessel until it is returned to the owner or otherwise dealt with. 44 That distinction is manifest in the language used in Part 3 of the WA Marine Act when compared to the language used in s 114 of the WA Marine Act which confers the power to make the regulations contained in Part 5 of the Navigable Wates Regulations. The word 'removal' has long been associated with vessels which are wrecks or obstructions.26 45 That distinction is also manifest in the different purposes behind the powers. The purpose of detaining an unsafe vessel is to prevent a person from operating the vessel until it is made safe because to do otherwise would put persons or property at risk. That purpose is evident having regard to the powers contained in s 61 and s 63 of the WA Marine Act and the offences contained in s 58B and s 62 of the WA Marine Act. 46 The purpose of removing a vessel which is an obstruction is to prevent the vessel from: being or becoming a hazard to safety or the 26 See, for example, Arrow Shipping Company Limited v Tyne Improvement Commissioners [1894] AC 508. -- 16 of 22 -- [2026] WASAT 71 Page 17 environment; being moored, berthed or placed in contravention of the marine legislation; using a pen, berth or mooring in contravention of a requirement to pay a charge for such use as specified in a notice under the marine legislation; or obstructing or being likely to obstruct the safe or lawful use of State waters or a thing in, or on or over State waters. That purpose is evident from the definition of 'obstruction', the power to remove a vessel which is an obstruction, including by way of destruction27 and the offence contained in reg 40D(2) of the Navigable Water Regulations. 47 Third, the Obstruction Notice itself is, on its face, evidence that the Decision was made under the Navigable Waters Regulations. The Obstruction Notice complies with the requirements of reg 40L of the Navigable Waters Regulations in respect of the content of an obstruction notice. 48 Fourth, the process which the CEO followed in respect of the Decision is the process outlined in Part 5 of the Navigable Waters Regulations in respect of obstructions and not the process outlined in Part 3 of the WA Marine Act in respect of unsafe vessels. The CEO, having formed an opinion that the Vessel was an obstruction (as stated in the Obstruction Notice), and having established that the applicant with the owner of the Vessel, issued the applicant with the Obstruction Notice as required by reg 40K(1). The CEO then removed the Vessel to a DTMI mooring more than 7 days after the Obstruction Notice was given to the applicant as permitted by reg 40K(2) and the Vessel is currently being stored by the DTMI as permitted by reg 42. Finally, the applicant was notified that the Vessel would be returned to him upon payment of the sum of $15,390 plus GST by way of costs and expenses of the obstruction as permitted by reg 44. 49 Fifth, at no stage has the CEO deviated from the process, or from the language used, in Part 5 of the Navigable Waters Regulations so as to suggest to the applicant that his Vessel is being detained under s 61 of the WA Marine Act or to cast doubt on which powers were being used and which processes followed in respect of the Vessel. In fact, Ms Bell made it quite clear to Mr Ebeling that his Vessel was not being detained under s 61 of the WA Marine Act. 27 Navigable Waters Regulations, reg 40K and reg 42. -- 17 of 22 -- [2026] WASAT 71 Page 18 50 Sixth, there is no evidence that the CEO exercised any powers under, or processes contained in, Part 3 of the WA Marine Act in relation to the Vessel. 51 Seventh, I have found at paragraph [11] above, that the Vessel was an obstruction for the purposes of paragraphs (a) and (d) of the definition of that term in reg 40C(2) of the Navigable Waters Regulations and for the reasons outlined in the Obstruction Notice. By way of contrast, there is no evidence that the Vessel was unsafe or that the CEO believed that the Vessel was an unsafe vessel so as to trigger the exercise of the CEO's power to detain the Vessel. 52 In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at page 436 Mason CJ, Brennan, Gaudron and McHugh JJ held that: Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language[.] 53 The removal and storage of a vessel without statutory authority or the consent of the owner may constitute a trespass to goods or detinue. 54 I accept Mr Ebeling's contention that there is no authority in reg 40K of the Navigable Waters Regulations to 'detain' a vessel which has been removed as an obstruction. 55 However, Part 5 of the Navigable Waters Regulations clearly provides statutory authority for the removal of a vessel which is an obstruction and for such a vessel to be stored pending its return to the owner. In particular, there is clear authority in reg 42 of the Navigable Waters Regulations to store a vessel which has been removed under reg 40K(2) or (4). Further, as I have outlined above at paragraphs [39] - [40], the regulations in Part 5 of the Navigable Waters Regulations are made under the express authority of s 114 of the WA Marine Act. Therefore, the ongoing storage of a vessel pursuant to reg 42 of the Navigable Waters Regulations does not mean that the vessel is being detained under s 61 of the WA Marine Act. 56 I do not accept Mr Ebeling's contention that once the Vessel was held beyond the point of obstruction clearance, this fell outside the scope of reg 40K and the Vessel was detained. This is because reg 42 of the Navigable Waters Regulations authorises the storage of a vessel which has been removed under reg 40K(2) or (4). -- 18 of 22 -- [2026] WASAT 71 Page 19 57 I do not accept Mr Ebeling's contention that there is no authority to withhold possession of a vessel pending payment of costs and expenses. As outlined above at paragraphs [28] - [30], the CEO's discretion to return a vessel which has been removed and stored under the Navigable Waters Regulations is contingent upon payment to the CEO of the reasonable costs and expenses for the obstruction, unless those costs and expenses are reduced or waived under reg 44(2). Accordingly, the CEO is permitted to store a vessel which has been removed until payment is made. 58 I do not accept Mr Ebeling's contention that the CEO's reliance on reg 40K cannot lawfully be used to achieve the functional outcome of detention which is governed exclusively by s 61 of the WA Marine Act. As stated above at paragraph [42], the practical effect of detention of an unsafe vessel under the WA Marine Act and removal and storage under the Navigable Waters Regulations is to interfere with the owner's rights to be in possession of, and to operate, their vessel. However, removal and storage or a vessel under the Navigable Waters Regulations is not the same as detention under s 61 of the WA Marine Act. This is because, as outlined above at paragraphs [23] - [38], there are different processes and powers to deal with vessels which are obstructions and vessels which are unsafe. 59 Further, I have found that the Vessel was removed and stored under the Navigable Water Regulations. The Vessel was not detained under s 61 of the WA Marine Act. Accordingly, Mr Ebeling's contention is misconceived. 60 I do not accept Mr Ebeling's contention that the WA Marine Act should not be construed in a manner that allows review rights and procedural protections to be bypassed in reliance on an alternative regulatory mechanism. 61 The SAT Act, the WA Marine Act and the Navigable Waters Regulations restrict the decisions which may be reviewed by the Tribunal. Whilst the Tribunal has jurisdiction to review a decision to detain a vessel under s 61 of the WA Marine Act, the Tribunal does not have jurisdiction to review a decision to issue an obstruction notice under the Navigable Waters Regulations. 62 The fact that a decision to issue an obstruction notice is not a reviewable decision is likely due to the fact that, if the CEO is of the opinion that a vessel is an obstruction, then the CEO is under a mandatory -- 19 of 22 -- [2026] WASAT 71 Page 20 obligation to issue an obstruction notice. By way of contrast, the CEO has the discretion to detain a vessel which the CEO believes on reasonable grounds to be an unsafe vessel. 63 The CEO did not bypass any review rights when the CEO issued the Obstruction Notice. This is because the issue of an obstruction notice by the CEO is not a decision which may be reviewed by the Tribunal and hence there are no review rights to bypass. Does the Tribunal have the jurisdiction to review the Decision? 64 I have found that the Tribunal does not have jurisdiction to review the issue of an obstruction notice by the CEO. 65 I have also found that the Decision was a decision to issue an obstruction notice. Accordingly, the Tribunal does not have jurisdiction to review the Decision and the Application must be dismissed. Person aggrieved 66 In light of my conclusion that the Tribunal does not have jurisdiction to review the Decision, it is not necessary to determine whether or not Mr Ebeling is 'a person aggrieved' for the purposes of s 63C(2) of the WA Marine Act. Conclusion 67 For the reasons outlined above, the Tribunal does not have jurisdiction to review the Decision and the Application should be dismissed because the Tribunal does not have jurisdiction. Some concluding observations about the submissions 68 In Mr Ebeling's Submissions, Mr Ebeling made reference to a number of High Court decisions, namely: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky); R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 (R v Toohey); Coco v The Queen (1994) 179 CLR 427 (Coco); and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond). Mr Ebeling also included what appeared to the Tribunal to be quotations from those decisions as indicated by his use of inverted commas or quotation marks. -- 20 of 22 -- [2026] WASAT 71 Page 21 69 None of the quotations existed at the paragraphs or pages of the decisions indicated in Mr Ebeling's Submissions or indeed anywhere else in the decision. 70 The Tribunal held a directions hearing on 21 May 2026 to establish the source or sources from which Mr Ebeling's Submissions were derived. Mr Ebeling denied that his submissions had been drafted with the use of artificial intelligence, and stated that the words contained within the inverted commas or quotation marks were his attempts to paraphrase his understanding of what the cases said at the paragraphs or pages indicated. Mr Ebeling also said that he had checked the decisions. 71 I do not fully accept Mr Ebeling's explanation because some of the purported quotes bore no resemblance at all to anything said in the decisions and this would have been apparent to him had he checked those decisions. 72 Inverted commas or quotation marks are commonly used in submissions filed in legal proceedings to mark the beginning and end of a quotation from a decision of a court or a tribunal. 73 It is misleading and unhelpful for a party to a proceeding in the Tribunal to file submissions with the Tribunal which purport to refer to a quotation from a decision when no such quotation exists. Given that most decisions are available on publicly accessible databases, all quotations from decisions should be checked for accuracy irrespective of whether or not the submissions have been drafted with the use of artificial intelligence. 74 Further, if a party to proceedings is or becomes aware that quotations in another party's submissions do not in fact exist, then this is a matter which should be drawn to the attention of the Tribunal. Orders The Tribunal orders: 1. The application is dismissed. -- 21 of 22 -- [2026] WASAT 71 Page 22 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS C Conley, MEMBER 17 JUNE 2026 -- 22 of 22 --