Marine Safety Act 2010

i Marine Safety Act 2010 No. 65 of 2010 TABLE OF PROVISIONS Section Page CHAPTER 1—PRELIMINARY 1 PART 1.1—PURPOSE AND COMMENCEMENT 1 1 Purpose 1 2 Commencement 3 PART 1.2—INTERPRETATION 4 3 Definitions 4 4 Meaning of close quarters situation 22 5 Meaning of unsafe vessel 22 6 Declaration of waterway managers 23 7 Declaration of vessels 23 8 Declarations that certain commercially operated vessels are unsuitable for recreational use 24 PART 1.3—APPLICATION 25 9 Act only applies to certain types of voyages 25 10 Act does not apply to defence force vessels 27 11 Interaction with the Occupational Health and Safety Act 2004 27 12 Transport Integration Act 2010 28 13 Crown to be bound 28 PART 1.4—OBJECTS AND PRINCIPLES 29 Division 1—Objects 29 14 Objects 29 Division 2—Principles of marine safety 29 15 Principle of shared responsibility 29 16 Principle of accountability for managing safety risks 30 17 Principle of integrated risk management 30 18 Principle of enforcement 31 19 Principle of transparency 31 -- 1 of 393 -- Section Page ii 20 Principle of participation, consultation and involvement of all affected persons 31 21 Principle of equity of use of Victorian waterways 31 Division 3—Other matters 32 22 Effect of objects and marine safety principles 32 CHAPTER 2—MARINE SAFETY DUTIES 33 PART 2.1—THE CONCEPT OF ENSURING SAFETY 33 23 The concept of ensuring safety 33 PART 2.2—SAFETY DUTIES OF PORT MANAGEMENT BODIES AND OWNERS OF COMMERCIALLY OPERATED VESSELS 34 24 Duties of port management bodies to ensure safety of marine safety infrastructure operations 34 25 Duty of owners of commercially operated vessels to ensure safety of vessels, marine safety equipment and operations 35 PART 2.3—SAFETY DUTIES OF MARINE DESIGNERS, MANUFACTURERS AND SUPPLIERS AND MARINE CONTRACTORS 38 26 Safety duties in relation to design, manufacture and supply of vessels 38 27 Safety duties in relation to design, manufacture and supply of marine safety equipment 39 28 Duties of suppliers of marine safety infrastructure operations to port management bodies 41 29 Duties of suppliers of vessel operations to owners of commercial vessels 42 PART 2.4—MARINE SAFETY WORKER DUTIES 44 30 Duties of marine safety workers 44 PART 2.5—SAFETY DUTIES RELATING TO RECREATIONAL VESSEL OPERATIONS 46 31 Masters of recreational vessels must take reasonable care 46 32 Persons participating in the operation of a recreational vessel must take reasonable care 46 PART 2.6—SAFETY DUTIES OF PASSENGERS ON VESSELS 49 33 Passengers on board vessels must take reasonable care 49 -- 2 of 393 -- Section Page iii PART 2.7—OTHER MATTERS 51 34 Single charge for multiple contraventions of certain duties 51 35 Civil liability not affected by Parts 2.2 to 2.6 51 CHAPTER 3—OPERATION OF VESSELS 53 PART 3.1—REGISTRATION OF RECREATIONAL VESSELS 53 36 Purposes of registration 53 37 Offence if vessel not registered 53 38 Vessel may be registered in one name only 54 39 Effecting registration, renewal or transfer 54 40 Safety Director may impose registration conditions 55 41 Prescribed conditions on registration 55 42 Register of registered vessels 55 43 Safety Director may cancel or suspend registration of a vessel 56 44 Cancellation of registration by court 57 PART 3.2—LICENSING OF MASTERS OF RECREATIONAL VESSELS 59 Division 1—Purposes 59 45 Purposes of licensing 59 Division 2—Offences for unlicensed master of certain classes of registered recreational vessels 59 46 Offence to be a master of registered recreational vessel without a marine licence or in breach of conditions of marine licence 59 47 Offence to be a master of prescribed type of registered recreational vessel without licence endorsement 60 48 Offence to be the master of a registered recreational vessel undertaking prescribed activity without licence endorsement 60 49 Offence to be the master of a regulated hire and drive vessel without a marine licence or in breach of conditions of marine licence 61 50 Offence to be the master of a prescribed type of regulated hire and drive vessel without licence endorsement 61 51 Offence to be the master of a regulated hire and drive vessel undertaking prescribed activity without licence endorsement 62 52 Offence to allow a non-licensed person to be the master of a registered recreational vessel 62 Division 3—General licensing provisions 63 53 General marine licence 63 54 Restricted marine licence 64 55 Licence endorsement 65 56 Safety Director may require a person to undergo testing 67 -- 3 of 393 -- Section Page iv Division 4—Exemptions from requirement to hold marine licence 68 57 Exemptions applying to licences issued outside Victoria 68 58 Exemption from licensing requirements for masters of non-engined vessels 70 Division 5—Other licensing offences 70 59 Offence for overseas or interstate operator to fail to comply with the conditions of the licence or certificate 70 60 Offence to be master of a registered recreational vessel while disqualified etc. 71 61 Offence not to have marine licence in person's possession 71 PART 3.3—CERTIFICATION OF COMMERCIAL VESSELS AND OPERATION 72 Division 1—Safe construction certificates 72 62 Offence to operate or cause or allow a commercially operated vessel to be operated without a safe construction certificate 72 63 Offence to breach conditions of safe construction certificate 72 64 Application for safe construction certificate 73 65 Issue of safe construction certificate by the Safety Director 73 66 Renewal of safe construction certificate 74 Division 2—Safe operation certificates 75 67 Offence to operate or cause or allow a commercially operated vessel to be operated without a safe operation certificate 75 68 Offence to breach conditions of safe operation certificate 75 69 Application for a safe operation certificate 76 70 Issue of safe operation certificate by the Safety Director 77 71 Renewal of safe operation certificate 77 72 Some commercial vessels or hire and drive vessels may be used recreationally 78 PART 3.4—CERTIFICATES OF COMPETENCY AND LOCAL KNOWLEDGE CERTIFICATES 80 Division 1—Certificates of competency 80 73 Offence to allow operation of a commercial vessel by persons in breach of crewing and certification requirements 80 74 Offence to operate vessel without appropriate certificate of competency 80 75 Offence not to comply with conditions of certificate of competency 81 76 Owner must not direct, cause or allow person to operate vessel in breach of certificate condition 81 77 Application for, and renewal of, certificate of competency 81 -- 4 of 393 -- Section Page v 78 Issue and renewal of certificates of competency by the Safety Director 81 79 Application to vary conditions of certificate of competency 82 Division 2—Local knowledge certificates 82 80 Offence to navigate vessel without local knowledge certificate in waters requiring certificate 82 81 Declaration in relation to waters requiring local knowledge certificates for navigation in those waters 83 82 Application for local knowledge certificates 83 83 Issue of local knowledge certificate 84 84 Renewal of local knowledge certificate 85 PART 3.5—VESSEL OPERATIONAL REQUIREMENTS 86 Division 1—Unsafe vessels 86 85 Detention of unsafe vessels 86 86 Offences in relation to load lines 88 Division 2—Dangerous operation and acts 88 87 Dangerous operation of a recreational vessel, government vessel or hire and drive vessel 88 88 Acts tending to endanger vessel or crew 89 Division 3—Other operational requirements 90 89 Tampering with a vessel 90 90 Distress signals 90 91 Assistance to people in distress 91 92 Offence to fail to comply with direction of Safety Director regarding removal of vessel 91 Division 4—Reporting of incidents 91 93 Reporting requirements in relation to reportable incidents 91 94 Reporting of reportable incidents to Safety Director 94 Division 5—Compliance with International Conventions 94 Subdivision 1—Interpretation 94 95 Definitions 94 Subdivision 2—Prevention of Collisions Convention 95 96 Regulations giving effect to Prevention of Collisions Convention 95 Subdivision 3—Safety Convention 96 97 Regulations giving effect to Safety Convention 96 -- 5 of 393 -- Section Page vi Subdivision 4—General 97 98 Regulations under this Division 97 99 Authority of Governor in Council to make regulations in relation to powers under Conventions 98 100 Safety Director may allow other fitting, material etc. 98 PART 3.6—MISCELLANEOUS MATTERS 100 101 Person not to be found guilty as owner and master in respect of same circumstances 100 102 Offence to supply vessel which does not comply with Australian Builders Plate Standard 100 CHAPTER 4—ENFORCEMENT 101 PART 4.1—INTERPRETATION 101 103 Definitions 101 PART 4.2—IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS 105 Division 1—Part does not affect other penalties 105 104 Part does not affect other penalties 105 Division 2—Impoundment and immobilisation of recreational vessels 105 105 Powers of police 105 106 Seizure of recreational vessel 106 107 Surrender of recreational vessel 107 108 Impoundment or immobilisation of a recreational vessel 109 109 Authorised persons 110 110 Notice to master, owner or registered person 111 111 Content of notice 112 112 Review by a senior police officer 113 113 Release of recreational vessel by Victoria Police 114 114 Appeal rights 115 115 Offences 116 116 Recovery of recreational vessel 117 117 Crown to pay costs if master found not guilty or charges not proceeded with 117 Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order 118 118 Impoundment or immobilisation order 118 119 Forfeiture order 119 120 Application for an impoundment or immobilisation order or a forfeiture order 120 -- 6 of 393 -- Section Page vii 121 Notice of application 121 122 Interest in recreational vessel not to be transferred 122 123 Notice in case of 2 or more charges 123 124 Direction not to transfer registration or register recreational vessel 125 125 Safety Director not to transfer registration or register recreational vessel 127 126 Cessation of direction under this Act does not affect any suspension 128 127 Hearing of application 128 128 Application for variation of order 129 129 When order takes effect 130 130 Police powers 132 131 Liability for costs of impoundment or immobilisation 132 132 Ownership rights 132 133 Third party protection from forfeiture order 132 Division 4—Search and seizure warrants 134 134 Application for search and seizure warrant 134 135 Search and seizure warrant 136 136 Record of proceedings for search and seizure warrant 137 137 Announcement before entry 137 138 Copy of search and seizure warrant to be given to occupier 137 139 Use of assistants to execute search and seizure warrant 138 140 Application of Magistrates' Court Act 1989 138 141 Expiry of search and seizure warrant 138 142 Report on execution of search and seizure warrant 138 143 Obstruction or hindrance of person executing search and seizure warrant 139 Division 5—Disposal of recreational vessels 139 144 Sale or disposal of uncollected recreational vessels and items 139 145 Sale or disposal of recreational vessel subject to forfeiture order 141 146 Application of proceeds of sale 142 147 Disposal of recreational vessel, item or thing subject to disposal order 142 148 Notice to be given of intention to apply for disposal order 143 149 Application for disposal order 144 150 Hearing of application for and making of disposal order 145 151 Application of proceeds of sale 145 Division 6—Miscellaneous 146 152 Service of notices under this Part 146 -- 7 of 393 -- Section Page viii PART 4.3—PROHIBITION OF USE OF RECREATIONAL VESSELS AND HIRE AND DRIVE VESSELS 147 Division 1—Part does not affect other penalties 147 153 Part does not affect other penalties 147 Division 2—Embargo notices and prohibition directions 147 154 Power to issue embargo notices 147 155 Police power to prohibit operation of vessels 149 PART 4.4—MARINE INFRINGEMENTS 151 156 Infringement notices 151 157 Person may be required to state name and address 151 158 Payment of penalty 152 PART 4.5—GENERAL ENFORCEMENT POWERS 153 159 Powers of entry in relation to lights 153 160 Arrest without warrant 153 161 Police power to move vessel or require vessel to be moved 154 162 Master of a vessel must obey directions etc. 154 PART 4.6—DISCIPLINARY ACTION 155 Division 1—Interpretation 155 163 Definitions 155 Division 2—Disciplinary action by Safety Director 155 164 When Safety Director must take disciplinary action against a person holding a permission 155 165 When Safety Director may take disciplinary action against person holding a permission 156 166 Disciplinary actions that may be taken by Safety Director against a person holding a permission 157 167 Procedure for taking disciplinary action against a person holding a permission 159 168 Suspension of permission 160 169 Effect of suspension of permission 161 170 Return of permission record 162 Division 3—Court based sanctions 162 171 Power of court to cancel or suspend marine licences 162 172 Effect of suspension of licence 164 173 Adverse publicity order 164 -- 8 of 393 -- Section Page ix PART 4.7—OWNER ONUS 166 174 Purpose of Part 166 175 Definitions 166 176 Owner onus offences 169 177 Effect of payment of penalty etc. 170 178 Use of effective statement to avoid liability 170 179 Cancellation of acceptance of statement 173 180 Proceedings against nominated persons 174 181 Defences to owner onus offences 175 182 Offence to provide false or misleading information 175 CHAPTER 5—MANAGEMENT OF WATERS 176 PART 5.1—WATERWAY RULES 176 Division 1—Interpretation 176 183 Definitions 176 Division 2—The Safety Director's power to make waterway rules 177 184 Making of waterway rules 177 185 Safety Director may make a rule that is consequential to a rule request 178 186 Waterway rules to be made on request or on initiative of Safety Director 179 187 Matters that must be considered in making a rule 179 188 Reasons must be given for making or not making a rule 180 189 Operation and commencement of a waterway rule 181 190 Rules to be published on Safety Director's Internet site 181 191 Safety Director must assess appropriateness of urgent safety rule 181 192 Consultation for the purpose of assessing appropriateness of urgent safety rule 183 Division 3—Procedure in relation to request for making of waterway rules 184 193 Initial consideration and advice by Safety Director in relation to certain requests 184 194 Requests for waterway rules 186 195 Consultation by Safety Director on proposed rules 187 196 Port management bodies, local port managers and waterway manager must consult before requesting rule 188 Division 4—Compliance with waterway rules 190 197 Offence not to comply with waterway rules 190 198 Offences of waterway rule contraventions relating to vessel operation are owner onus offences 190 -- 9 of 393 -- Section Page x PART 5.2—STANDARDS FOR NAVIGATION AIDS AND DREDGING 191 199 Determination of the standards for navigation aids and dredging and maintenance of channels 191 200 Consultation required before making a determination 191 201 Matters that must be considered in making a determination 191 202 Offence to fail to comply with standard determined under this Part 192 PART 5.3—BOATING ACTIVITY EXEMPTIONS AND EXCLUSION ZONES 193 Division 1—Boating activity exemptions 193 203 Declarations to exempt boating activity on certain waters from Act or regulations 193 204 Safety Director to be given copy of declaration application and proposed declaration 196 205 Effect of a declaration 197 206 Exemption from compliance with Act, regulations or Port Management Act 1995 197 207 Compliance with declarations that modify or provide for other requirements to apply 197 Division 2—Activity exclusion zones 197 208 Activity exclusion zones 197 209 Safety Director to be given proposed notice creating activity exclusion zone 198 210 Compliance with activity exclusion zones 199 PART 5.4—REGULATION OF OTHER ACTIVITIES ON CERTAIN WATERS 200 211 Control of navigation etc. in the vicinity of works carried out on, over or under waters 200 212 Safety Director to be given proposed notice relating to regulation of waters around works 202 213 Compliance with a direction of applicable regulatory entity 203 214 Compliance with notice 203 215 Emergency directions 203 PART 5.5—WATERWAY MANAGEMENT 205 216 Functions and powers of waterway managers 205 217 Delegation powers of waterway managers 206 218 Indemnity for waterway managers 206 219 Safety Director may develop code of practice for waterway management 207 -- 10 of 393 -- Section Page xi CHAPTER 6—HARBOUR MASTERS 208 PART 6.1—REQUIREMENTS FOR ENGAGEMENT OF LICENSED HARBOUR MASTERS 208 220 Certain entities must engage harbour masters 208 221 Identity cards 209 PART 6.2—LICENSING OF HARBOUR MASTERS 211 222 Person must not act as a harbour master without harbour master licence 211 223 Application for harbour master licence 211 224 Grant of harbour master licence 212 225 Application by harbour master for variation of conditions of harbour master licence 213 226 Variation of condition of harbour master licence by Safety Director following application 213 227 Imposition or variation of condition of a harbour master licence by Safety Director 213 228 Requirement as to notification of licence condition 214 PART 6.3—ASSISTANT HARBOUR MASTERS 215 229 Authorisation to act as assistant harbour master 215 PART 6.4—FUNCTIONS AND POWERS OF HARBOUR MASTERS 217 230 Functions of harbour masters 217 231 Powers of harbour masters 218 232 Power of harbour masters to give written and oral directions 218 233 Specific provisions as to directions relating to the entry and removal of vessels 220 234 General provisions relating to harbour master directions 220 235 Amendment and revocation of directions 221 236 Harbour master may carry out direction 221 237 Offence to fail to comply with direction or obstruct, harbour master 222 PART 6.5—OTHER MATTERS 223 238 Protection from liability 223 -- 11 of 393 -- Section Page xii CHAPTER 7—PILOTAGE 224 PART 7.1—PROVISION OF PILOTAGE SERVICES 224 239 Offence to provide pilotage services without registration 224 240 Application for registration as a pilotage services provider 224 241 Registration as a pilotage service provider 225 242 Duration of registration 225 243 Certificates of registration 226 244 Register of pilotage service providers 226 245 Requirement to notify the Safety Director of changes to registration information 227 246 Records to be kept 227 247 Offence to fail to comply with safety standards 227 PART 7.2—PILOTS 228 Division 1—General requirement to use pilots 228 248 Offence not to use a pilot 228 249 Offence to act as a pilot without a pilot licence or pilot exemption 228 Division 2—Declaration of pilot required waters 229 250 Declaration 229 Division 3—Pilot licences 229 251 Application for pilot licence 229 252 Grant of pilot licence 230 Division 4—Pilot exemptions 230 253 Application for pilot exemption 230 254 Grant of pilot exemption 231 255 Effect of pilot exemption 231 256 Renewal of pilot exemption 232 PART 7.3—MISCELLANEOUS MATTERS 233 257 Liability of pilots and pilotage service providers 233 CHAPTER 8—GENERAL 234 PART 8.1—ADMINISTRATION OF ACT 234 Division 1—The Safety Director 234 258 Functions of the Safety Director 234 259 Powers of the Safety Director 236 260 Exemptions 236 -- 12 of 393 -- Section Page xiii 261 Provision or maintenance of navigation aids by Safety Director 237 262 Safety Director may cause vessel to be boarded, moved, secured or operated in certain cases 238 263 Recovery of costs 238 264 Inquiries into marine safety matters 238 265 Extension of suspension pending inquiry 239 266 Accountability for damage 240 267 Order to remove obstructions in navigable waters 240 268 Safety Director may remove obstructions to navigation 241 269 Power to prohibit operation of particular vessel 242 Division 2—Functions and powers of other entities 242 270 Chief Commissioner of Police may disclose reportable incidents to Safety Director 242 271 Acquisition of land 243 PART 8.2—CODES OF PRACTICE 244 272 Codes of practice—safety duties 244 273 Revisions to approved codes of practice 244 274 Revocation of approvals of codes of practice 245 275 Availability of approved codes of practice 245 276 Minister may consult before approving code of practice or revision to code of practice 245 277 Effect of approved code of practice 246 278 Tabling and disallowance of approved codes of practice 246 PART 8.3—MARINE ENFORCEMENT POLICY 248 279 Safety Director to develop, maintain and review Marine Enforcement Policy 248 280 Safety Director must co-ordinate and support implementation 248 281 Safety Director must consult when developing or reviewing Marine Enforcement policy 249 282 Content of Marine Enforcement Policy 250 283 Marine Enforcement Policy to be had regard to 250 PART 8.4—OFFENCES BY BODIES CORPORATE 251 284 Imputing conduct to bodies corporate 251 285 Liability of officers of bodies corporate 251 PART 8.5—OFFENCES BY PARTNERSHIPS AND UNINCORPORATED BODIES OR ASSOCIATIONS 253 286 Liability of officers of partnerships and unincorporated bodies or associations 253 -- 13 of 393 -- Section Page xiv PART 8.6—PROCEEDINGS AGAINST THE CROWN 255 287 Responsible agency for the Crown 255 PART 8.7—REVIEW OF DECISIONS 256 288 Definitions 256 289 Internal review 256 290 Review by VCAT 258 PART 8.8—COURT PROCESSES 259 291 Jurisdiction 259 292 Power to prosecute 259 293 Evidence of speed 260 294 General evidentiary provisions 260 295 Evidence 261 296 Act presumed to apply to vessels 262 297 Seizure and sale of vessel and equipment 262 298 Summary jurisdiction in indictable offences 262 PART 8.9—MISCELLANEOUS MATTERS 264 299 Effect of compliance with regulations or approved codes of practice 264 300 Nationally Agreed Standards 264 301 Forgery etc. of documents and identification marks 265 302 Offence to interfere etc. with navigation aid 265 303 Offence to obstruct authorised person 265 304 Offence to offer or accept bribes 266 305 Obtaining licence etc. by false statements 267 306 Disclosure of information 267 307 Safety Director may vary or cancel permission record to correct error or omission 268 308 Service 269 PART 8.10—REGULATIONS 270 Division 1—General regulation-making powers 270 309 General regulation-making powers 270 Division 2—Fees, rates and charges 274 310 Fees, rates and charges 274 311 Fees for waterway managers 276 312 Fee for boating facilities and safety education 276 -- 14 of 393 -- Section Page xv CHAPTER 9—SAVINGS AND TRANSITIONAL PROVISIONS 278 PART 9.1—DEFINITIONS 278 313 Definitions 278 PART 9.2—OPERATIVE PROVISIONS 279 314 General transitional provision 279 315 Savings and transitional regulations 279 316 Hoon boating provisions re-enacted 279 317 Declaration of waterway managers 280 318 Declaration of vessels 280 319 Determinations in relation to requirements to use a pilot taken to be declaration of pilot required waters 280 320 Registered vessels 281 321 Applications for registration of vessels 281 322 Applications for the renewal or transfer of the registration of a vessel 281 323 Suspensions of registration of vessels 281 324 Processes for suspensions of registrations of vessels 282 325 Processes for cancellations of registrations of vessels 282 326 Prohibitions in relation to operation of particular vessels 283 327 Operator licences 283 328 Personal watercraft endorsements 284 329 Applications for operator licences 284 330 Applications for personal watercraft endorsements 284 331 Renewals of operator licences 285 332 Variations to operator licences on initiative of Director 285 333 Variations to personal watercraft endorsements on application by holder of a personal watercraft endorsement 287 334 Variations to personal watercraft endorsements on initiative of Director 288 335 Requests for cancellation of personal watercraft endorsements 289 336 Suspension of operator licences 290 337 Processes for suspensions of operator licences 290 338 Processes for cancellations of operator licences 291 339 Processes for revocation of personal watercraft endorsements 291 340 Court suspensions of operator licences 292 341 Disqualifications from obtaining operator licences 293 342 Waterway rules 293 343 Boating activities 293 344 Harbour master identity cards 293 345 Harbour master licences 294 346 Applications for harbour master licences 294 347 Authorisation of assistant harbour masters 294 348 Written directions of harbour masters 294 349 Pilotage services provider registration 294 -- 15 of 393 -- Section Page xvi 350 Register of pilotage services providers 295 351 Pilot licences 295 352 Applications for pilot licences 295 353 Pilot exemptions 295 354 Applications for pilot exemptions 295 355 Local knowledge certificates 296 356 Applications for local knowledge certificates 296 357 Specified standards of the Director 296 358 Specified approvals and determinations of the Director 297 359 Exemptions of Director 298 360 Certificates of competency 298 361 Applications for certificates of competency 298 362 Certificates of survey 298 363 Investigations by Director 299 364 Investigations by inspectors 299 365 Improvement notices 300 366 Prohibition notices 300 367 Internal reviews in relation to applications 300 368 Appeals commenced in relation to refusal of applications in relation to licences and endorsements 301 369 Appeals commenced in relation to decisions to suspend or cancel operator licences or revoke endorsements 302 370 Appeals commenced in relation to decisions to vary operator licences or vary conditions on licences or endorsements 304 371 Appeals against disqualifications by order of a court 306 372 Appeals against cancellation or suspension of operator licence by order of a court 306 373 Delegations of waterway managers 307 374 References to Director to be read as references to Safety Director 308 CHAPTER 10—AMENDMENTS TO OTHER ACTS 309 PART 10.1—MARINE ACT 1988 309 Division 1—Change of name of Act and amendment of preliminary provisions 309 375 Change of name of Act 309 376 Section 1 substituted—Purposes of Act 309 1 Purpose 309 377 Definitions 310 Division 2—Amendment of Part 4 311 378 Interpretation 311 379 Offences involving alcohol or other drugs 313 380 Provisions about cancellation and disqualification 313 -- 16 of 393 -- Section Page xvii 381 Immediate suspension of operator licence in certain circumstances 314 382 Appeal to court against suspension of operator licence 314 383 Section 29 substituted 314 29 Preliminary breath tests 314 384 Preliminary breath testing stations 315 385 Breath analysis 316 386 Blood samples taken in certain cases 316 387 Evidentiary provisions—blood tests 316 388 Evidentiary provisions—breath tests 316 389 Avoidance of certain provisions in contracts of insurance 316 Division 3—Consequential amendments 317 390 Repeal of various parts and provisions 317 391 Part 8 consequential amendments 317 392 Part 9 consequential amendments 317 393 Further consequential amendments 317 PART 10.2—TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT 1983 320 394 Definitions 320 395 Amendment of section 82C—Application of definitions to this Part 321 396 Amendment of section 84 and repeal of section 84A— Specific investigation powers 321 397 Amendment of section 228S—Definitions 322 398 New section 228WA inserted 323 228WA Offence to impersonate a transport safety officer 323 399 Amendment of section 228Z—Power of entry 323 400 Amendment of section 228ZB—General inspection, inquiry and search powers 324 401 New section 228ZBA inserted 324 228ZBA General marine related inspection, inquiry and search powers 324 402 Amendment of section 228ZC—Securing a site 326 403 Amendment of section 228ZE—Seizure power 326 404 Amendment of section 228ZF—Use of equipment to examine or process things 326 405 Amendment of section 228ZG—Search warrant 326 406 Amendment of section 228ZI—Announcement before entry 327 407 Amendment of section 228ZJ—Copy of warrant to be given to occupier 327 408 Amendment of section 228ZK—Power to require production of documents and related items 327 409 Amendment of section 228ZM—Direction to provide certain information 328 -- 17 of 393 -- Section Page xviii 410 New section 228ZNA inserted 329 228ZNA Person in charge must stop and provide licence or certificates when directed 329 411 Amendment of section 228ZP—Securing seized things 330 412 Amendment of section 228ZT—Receipt for seized things 330 413 Amendment of section 228ZW—Magistrates' Court may extend period 330 414 Amendment of section 228ZZ—Use of force 331 415 Amendment of section 228ZZA—Use or seizure of electronic equipment 331 416 Amendment of section 228ZZJ—Prohibition notice 331 417 Amendment of section 228ZZN—Certificates 333 PART 10.3—PORT MANAGEMENT ACT 1995 334 418 Definitions 334 419 Other consequential amendments 334 PART 10.4—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 336 420 Consequential amendments 336 421 Repeal of Part and Schedule 3 336 __________________ SCHEDULES 337 SCHEDULE 1—Particular Powers of the Safety Director 337 SCHEDULE 2—Subject Matter for Regulations 341 SCHEDULE 3—Consequential Amendments to Other Acts 349 1 Chattel Securities Act 1987 349 2 City of Melbourne Act 2001 349 3 Crimes Act 1958 349 4 Criminal Procedure Act 2009 349 19A Marine Safety Act 2010 349 5 Crown Land (Reserves) Act 1978 349 6 Environment Protection Act 1970 350 7 Fisheries Act 1995 351 8 Infringements Act 2006 351 9 Local Government Act 1989 351 10 Major Sporting Events Act 2009 351 11 Major Transport Projects Facilitation Act 2009 351 12 Marine Safety Legislation (Lakes Hume and Mulwala) Act 2001 351 13 National Parks Act 1975 352 14 Pollution of Waters by Oil and Noxious Substances Act 1986 352 -- 18 of 393 -- Section Page xix 15 Prostitution Control Act 1994 352 16 Transport Integration Act 2010 352 17 Wildlife Act 1975 355 ═══════════════ ENDNOTES 357 INDEX 358 -- 19 of 393 -- 1 Marine Safety Act 2010 † No. 65 of 2010 [Assented to 28 September 2010] The Parliament of Victoria enacts: CHAPTER 1—PRELIMINARY PART 1.1—PURPOSE AND COMMENCEMENT 1 Purpose The purpose of this Act is to provide for safe marine operations in Victoria by, among other things— Victoria -- 20 of 393 -- Part 1.1—Purpose and Commencement Marine Safety Act 2010 No. 65 of 2010 2 (a) imposing a range of safety duties on— (i) owners, managers, designers, manufacturers, suppliers of vessels, marine safety infrastructure and marine safety equipment; and (ii) marine safety workers; and (iii) masters and users of recreational vessels; and (iv) passengers on vessels; and (b) providing for the registration of vessels; and (c) providing for the licensing of masters of recreational vessels and hire and drive vessels; and (d) providing for the regulation and management of the use of, and navigation of vessels on, State waters; and (e) requiring port management bodies to engage harbour masters and providing for the licensing of persons to act as harbour masters and the authorisation of persons to act as assistant harbour masters; and (f) providing for the registration of pilotage service providers and the licensing of pilots; and (g) requiring the use of pilots in declared parts of State waters; and (h) requiring compliance with nationally agreed standards for commercial vessels and commercial vessel operations and providing for verification of compliance through certification; and s. 1 -- 21 of 393 -- Part 1.1—Purpose and Commencement Marine Safety Act 2010 No. 65 of 2010 3 (i) requiring compliance with nationally agreed standards for masters and crew of commercial vessels and providing for verification of compliance through certification. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2012, it comes into operation on that day. __________________ s. 2 -- 22 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 4 PART 1.2—INTERPRETATION 3 Definitions (1) In this Act— approved code of practice means a code of practice approved under Part 8.2 and includes an approved code of practice revised in accordance with that Part; Australian Builders Plate Standard means the "National Standard for the Australian Builders Plate for Recreational Boats" adopted by the Australian Transport Council and notified in the Commonwealth of Australia Gazette; Australian fishing vessel means any of the following vessels that is equipped for fishing or from which fishing takes place— (a) an Australian boat within the meaning of the Fisheries Management Act 1991 of the Commonwealth; (b) an Australian flagged boat within the meaning of the Fisheries Management Act 1991 of the Commonwealth; certificate of competency means a certificate issued under section 78; channel includes swinging basin, turning circle, an area alongside a berth or dock, fairway and anchorage; channel operator has the same meaning as in the Port Management Act 1995; close quarters situation has the meaning given by section 4; s. 3 -- 23 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 5 commercially operated vessel means a commercial vessel or a hire and drive vessel; commercial vessel means a fishing vessel or trading vessel; Commonwealth Navigation Act means the Navigation Act 1912 of the Commonwealth; corresponding authority means a person who, or body that, outside of Victoria has functions under a corresponding law that correspond with any of the functions of the Safety Director under Parts 3.1 and 3.3; corresponding law means a law of the Commonwealth or of another State or of a Territory that corresponds to Parts 3.1 and 3.3; fairway means that part of an area of navigable waters that is usually used by vessels for navigation through the area; fishing vessel means a vessel used or intended to be used for catching fish or other living resources of the sea or seabed for profit or reward and includes any such vessel in the course of construction or a vessel that is declared under section 7 to be a fishing vessel but excludes any vessel— (a) engaged in harvesting or transport of algae or aquatic plants; or (b) that is primarily a carrier or a mother vessel; general marine licence means a licence granted under section 53; s. 3 -- 24 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 6 government vessel means— (a) a vessel— (i) that belongs to the Commonwealth or a State or a Territory; or (ii) the beneficial interest in which is vested in the Commonwealth or a State or a Territory; or (iii) that is for the time being demised or sub-demised to, or in the exclusive possession of, the Commonwealth or a State or a Territory; or (b) a vessel that is, or is of a class that is, declared under section 7 to be a government vessel or class of government vessel— but does not include a vessel belonging to the naval, military or air forces of the Commonwealth; harbour master means— (a) a licensed harbour master; or (b) any person authorised under section 229 to exercise any of the functions of the harbour master, if the person so authorised is acting in accordance with the authorisation; harbour master licence means a licence granted under section 224; hire and drive vessel means— (a) a vessel (other than a recreational vessel) that is or is intended to be let for hire or reward or for any other consideration, and includes a vessel that s. 3 -- 25 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 7 is provided at a holiday establishment or hotel for the use of tenants or guests; or (b) a vessel that is, or is of a class that is, declared under section 7 to be a hire and drive vessel or class of hire and drive vessel; licensed harbour master means a person who is the holder of a harbour master licence; licensed pilot means a pilot who is the holder of a pilot licence; local knowledge certificate means a certificate issued under section 83; local port has the same meaning as in the Port Management Act 1995; local port manager means, in relation to a local port, the person or body appointed under section 44A of the Port Management Act 1995 as the port manager of that port; marine incident means— (a) a death of, or injury to, a person onboard a vessel caused by the operation or navigation of a vessel; or (b) the loss or presumed loss of a vessel; or (c) a collision of vessels; or (d) a collision by a vessel with an object; or (e) the grounding, sinking, flooding or capsizing of a vessel; or (f) a fire onboard a vessel; or (g) a loss of stability of a vessel that affects the safety of the vessel; or s. 3 -- 26 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 8 (h) the structural failure of a vessel; or (i) a close quarters situation; or (j) an event that results in— (i) the death of, or injury to, a person onboard a vessel; or (ii) the loss of a person from a vessel; or (iii) a vessel becoming disabled and requiring assistance; or (iv) the fouling or damaging of any pipeline or submarine cable or to a lighthouse, lightship, beacon, buoy or marine mark to which section 268(1C)(c) of the Commonwealth Navigation Act applies; marine infringement means— (a) an offence against this Act or the regulations; or (b) any offence against regulations made under the Port Management Act 1995— prescribed for the purposes of Part 4.4; marine licence means— (a) a general marine licence; or (b) a restricted marine licence; marine operations means marine safety infrastructure operations or vessel operations; s. 3 -- 27 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 9 marine safety equipment means equipment designed or used to prevent or mitigate the consequences of a marine incident and includes— (a) personal flotation devices carried on a vessel; and (b) telecommunications systems carried or installed on a vessel; and (c) flares and other devices carried on a vessel that can be used to attract attention to the vessel or indicate the vessel's position; and (d) position identification systems carried or installed on a vessel; and (e) anchors and other devices carried on a vessel that may be used to maintain the vessel's position or stability; and (f) oars and other alternative means of propulsion carried on a vessel; and (g) fire extinguishers carried or installed on a vessel; and (h) lights carried or installed on a vessel; and (i) thermal protective aids carried on a vessel; marine safety equipment design and construction activities means designing, commissioning, constructing, manufacturing, maintaining, repairing or modifying marine safety equipment; marine safety infrastructure means the channels and facilities that are necessary to ensure the safety of marine operations and includes— s. 3 -- 28 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 10 (a) navigation aids and associated structures and works; and (b) signage and associated structures and works; and (c) lights and associated structures and works; and (d) telecommunications systems and associated structures and works; and (e) buildings used for the purpose of observing vessel operations; and (f) traffic management systems (including vessel traffic systems and associated structures and works); and (g) plant and machinery used for dredging; and (h) slipways, wharves, jetties, piers and other berthing facilities; and (i) boat ramps and other launching facilities; marine safety infrastructure operations means— (a) designing, commissioning, constructing dredging, manufacturing, erecting, installing, operating, maintaining, repairing, monitoring or managing marine safety infrastructure; or (b) operating communications systems (including signals) and vessel traffic management systems for the purpose of directing the safe movement of vessels in port waters; marine safety matter has the same meaning as in the Transport Integration Act 2010; s. 3 -- 29 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 11 marine safety work means any activity that may affect the safety of marine safety infrastructure operations or vessel operations in respect of a commercial vessel, including— (a) navigating, conducting or controlling the movement of a commercial vessel; (b) facilitating the navigation, conduct or control of the movement of a commercial vessel; (c) implementing and maintaining safe working systems for— (i) marine safety infrastructure operations; or (ii) vessel operations in respect of a commercial vessel; (d) installing, designing, constructing, supplying, repairing, modifying, maintaining, monitoring, examining or testing marine safety infrastructure; (e) any work involving certification as to the safety of marine safety infrastructure or any part of marine safety infrastructure; (f) any work involving the development, management or monitoring of safe working systems for— (i) marine safety infrastructure operations; or (ii) vessel operations in respect of a commercial vessel; s. 3 -- 30 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 12 (g) any work connected to the removal of hazards, obstructions or dangers to the safety of— (i) marine safety infrastructure operations; or (ii) vessel operations in respect of a commercial vessel; (h) directing (including through the use of signals and signs and radio or other electronic communications) the movement of vessels in port waters; (i) any other work that is prescribed as marine safety work; marine safety worker means a person who has carried out, is carrying out or is about to carry out, marine safety work including a person who is— (a) engaged by any other person to carry out marine safety work; (b) a trainee; (c) a volunteer; marine search and rescue vessel means a vessel prescribed as a marine search and rescue vessel; master, in relation to a vessel, means a person having command or charge of the vessel; member of the police force has the same meaning as member of the force has in the Police Regulation Act 1958; National Standard for Commercial Vessels means the National Standards for Commercial Vessels adopted by the Australian Transport Council and notified in the Commonwealth of Australia Gazette; s. 3 -- 31 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 13 National Standard for the Administration of Marine Safety means the National Standards for the Administration of Marine Safety adopted by the Australian Transport Council and notified in the Commonwealth of Australia Gazette; navigation aid means a device used for navigation, and includes a beacon, buoy, marine mark, light house and light ship, but does not include a device on board a vessel; officer of a body corporate, unincorporated body or association or partnership has the meaning given by section 9 of the Corporations Act; operate means to facilitate or control the movement or navigation of a vessel (or a thing connected to a vessel) that is not— (a) at anchor; or (b) made fast to the shore; or (c) aground; or (d) ashore; owner, in relation to a vessel, includes a person having a beneficial interest in the vessel, a demise or sub-demise charterer of the vessel and any person having exclusive possession of the vessel; permission means any of the following— (a) a marine licence including any endorsement of a marine licence; (b) a harbour master licence; (c) a pilot licence; (d) a pilot exemption; (e) a safe construction certificate; s. 3 -- 32 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 14 (f) a safe operation certificate; (g) a certificate of competency including any endorsement of a certificate of competency; (h) a local knowledge certificate; (i) registration as a pilotage services provider under Chapter 7; (j) registration of a vessel; personal watercraft means any recreational vessel that is of a kind that is required by or under this Act to be registered and that— (a) has an engine that is used for propulsion; and (b) has a fully enclosed hull; and (c) does not retain water on it if it capsizes; and (d) is designed to be operated by a person standing, sitting astride or kneeling on the vessel but not seated within the vessel; pilot means a person who does not belong to, but has the conduct of, a vessel; pilot exemption means an exemption granted under section 254; pilot exempt master means a master of a vessel who is the holder of a pilot exemption; pilot licence means a licence granted under section 252; pilot required waters means those parts of State waters to which a declaration under section 250 applies; s. 3 -- 33 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 15 pilotage services means— (a) the service of providing a pilot to navigate a vessel within, or into or out of, port waters; or (b) the service of providing transport and transfer of a pilot to and from a vessel for which services under paragraph (a) are required; or (c) both of the services referred to in paragraphs (a) and (b); pilotage services provider means a person registered under section 241 to provide pilotage services; port includes any of the following waters, or any part of those waters— (a) any harbour or haven, whether natural or artificial; (b) any estuary, channel, river, creek or roadstead; (c) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers; port management body means— (a) in relation to the port of Melbourne or the port of Hastings, the Port of Melbourne Corporation; (b) in relation to— (i) the waters declared under section 5 of the Port Management Act 1995 to be the port of Geelong, the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to s. 3 -- 34 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 16 those waters, that channel operator; (ii) the waters declared under section 5 of the Port Management Act 1995 to be the port of Portland, the Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel operator; port of Melbourne has the same meaning as in the Port Management Act 1995; Port of Melbourne Corporation has the same meaning as in the Transport Integration Act 2010; port of Melbourne waters has the same meaning as in the Port Management Act 1995; port waters has the same meaning as in the Port Management Act 1995; recreational vessel means— (a) a vessel used or intended to be used wholly for the purpose of recreation or sport and not for hire or reward; or (b) a vessel that is, or is of a class that is, declared under section 7 to be a recreational vessel or class of recreational vessel; registered person, in relation to— (a) a recreational vessel, means each of the following— (i) the person in whose name the vessel is registered or the person recorded on a register of vessels s. 3 -- 35 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 17 maintained under a corresponding law as the person responsible for the vessel; (ii) if the Safety Director, or a corresponding authority under a corresponding law, has received notice of transfer of registration of the vessel, the person whose name is disclosed in the records kept by the Safety Director or the corresponding authority (as the case requires) as being responsible for the vessel; (iii) if the vessel displays a special identification plate issued by the Safety Director or by a corresponding authority under a corresponding law, the person to whom the plate is assigned; (b) a commercial vessel, means each of the following— (i) the person who, at the time at which an identification mark for the vessel was last assigned by the Safety Director or a corresponding authority, was the person responsible for the vessel to which that identification mark was assigned; or (ii) the person whose name is disclosed in the records kept by the Safety Director or a corresponding authority as being entitled to use or process that identification mark that was last assigned to the vessel; s. 3 -- 36 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 18 registered recreational vessel means a recreational vessel that is of a kind which is required by or under Part 3.1 to be registered; regulated hire and drive vessel means— (a) a hire and drive vessel that has an engine that is able to propel the vessel at a speed of 10 knots or more; or (b) a vessel that falls within any other class of hire and drive vessel specified by the regulations for the purposes of this paragraph; relevant marine safety law means— (a) a provision of this Act or of any regulations made under this Act; (b) a provision of the Port Management Act 1995 or any regulations made under that Act; (c) section 37 of the Pollution of Waters by Oil and Noxious Substances Act 1986 or any regulations made under that Act for the purposes of that section; (d) a provision of the Marine (Drug, Alcohol and Pollution Control) Act 1988 and any regulations made under that Act; reportable incident means an event referred to in paragraph (b), (c), (d), (e), (f), (g), (h), (i) or (j)(ii), (j)(iii) or (j)(iv) of the definition of marine incident; restricted marine licence means a licence granted under section 54; s. 3 -- 37 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 19 safe construction certificate means a certificate issued under section 65; safe operation certificate means a certificate issued under section 70; Safety Director means the Director, Transport Safety within the meaning of section 3 of the Transport Integration Act 2010; State waters means— (a) the territorial sea adjacent to the State; and (b) the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State; and (c) waters within the limits of the State; supply includes— (a) in relation to goods—supply and resupply by way of sale, exchange, lease, hire or hire purchase, whether as principal or agent; (b) in relation to services—provide, grant or confer, whether as principal or agent; trading vessel means— (a) a vessel used or intended to be used for or in connection with any business or commercial activity, and includes (but is not limited to) a vessel used or intended to be used wholly or principally for— (i) carrying passengers or cargo for hire or reward; or (ii) providing services to vessels and shipping, whether for reward or otherwise; or s. 3 -- 38 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 20 (b) a vessel that is, or is of a class that is, declared under section 7 to be a trading vessel or class of trading vessel— but does not include a government vessel or a fishing vessel; transport safety officer has the same meaning as in the Transport (Compliance and Miscellaneous) Act 1983; Uniform Shipping Laws Code means the Uniform Shipping Laws Code adopted by the Australian Transport Council and notified in the Commonwealth of Australia Gazette; unmanaged waterways means the parts of State waters— (a) in respect of which there is no person or body declared to be the waterway manager under section 6; or (b) that are not part of a local port; or (c) that are not part of the waters of the port of Melbourne, port of Geelong, port of Hastings or port of Portland; unsafe vessel has the meaning given by section 5; vessel means any kind of vessel that is used, or capable of being used, in navigation by water, however propelled or moved, and includes— (a) a barge, lighter, floating restaurant or other floating vessel; and (b) an air-cushion vehicle, or other similar craft, that is used in navigation by water; and s. 3 -- 39 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 21 (c) any aeroplane that is designed for and capable of being waterborne, for so long as that aeroplane is waterborne; and (d) a life boat; and (e) a thing being towed by a vessel; and (f) an off-shore industry mobile unit within the meaning of the Commonwealth Navigation Act— but does not include an off-shore industry mobile unit that is not self-propelled; vessel design and supply activities means designing, commissioning, constructing, manufacturing, maintaining, repairing or modifying a vessel; vessel operations means— (a) operating a vessel; or (b) actions of a pilot when the pilot has conduct of a vessel, including the navigation of the vessel; Victorian Regional Channels Authority has the same meaning as in the Transport Integration Act 2010; volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses); waterway manager means a person or body that has been declared under section 6 to be a waterway manager; waterway rules means rules made under Part 5.1. s. 3 -- 40 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 22 (2) A reference to an engine in this Act or the regulations does not include a reference to a sail, paddle, oar, pedal or any other means of propelling a vessel that relies solely on the wind or physical human activity as a power source. (3) Unless the context otherwise requires, a reference in this Act to a Part by a number must be construed as a reference to the Part, designated by that number, of this Act. 4 Meaning of close quarters situation For the purposes of this Act, a close quarters situation is a situation where— (a) at least 2 vessels pass within proximity of each other such that a reasonable person would in all the circumstances conclude there was a risk of collision by those vessels; (b) one vessel passes within proximity of an object such that a reasonable person would in all the circumstances conclude there was a risk of collision by that vessel with that object. 5 Meaning of unsafe vessel For the purposes of this Act, a vessel is an unsafe vessel if the operation of the vessel may endanger any person because of— (a) the condition or equipment of the vessel; or (b) the manner in which cargo and equipment on the vessel is stowed or secured; or (c) the nature of the cargo; or (d) the overloading of the vessel with persons or cargo; or (e) the number or qualifications of its crew; or s. 4 -- 41 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 23 (f) the absence of marine safety equipment that is required under this Act or the regulations to be carried or installed on the vessel. 6 Declaration of waterway managers (1) The Minister, by Order published in the Government Gazette, may declare— (a) the Safety Director; or (b) a person or a body established or constituted by or under any Act for any public purpose— to be the waterway manager of a part of State waters that is specified in the Order. (2) The Minister may make an Order under subsection (1) only if the Safety Director or the person or body agrees to being declared a waterway manager. (3) An Order under subsection (1) has effect for the period specified in the Order. (4) A period specified in an Order under subsection (1) must not exceed 5 years commencing after the Order takes effect. 7 Declaration of vessels (1) The Safety Director, by notice published in the Government Gazette, may declare— (a) a vessel to be a fishing vessel, government vessel, hire and drive vessel, recreational vessel or a trading vessel; (b) a class of vessel to be a class of fishing vessel, government vessel, hire and drive vessel, recreational vessel or a trading vessel. s. 6 -- 42 of 393 -- Part 1.2—Interpretation Marine Safety Act 2010 No. 65 of 2010 24 (2) A declaration under subsection (1) may be for a specified period. Note In making a declaration under this section the Safety Director must have regard to guidelines made by the Minister under section 31A of the Transport Integration Act 2010: see section 258(2). 8 Declarations that certain commercially operated vessels are unsuitable for recreational use The Safety Director, by notice published in the Government Gazette, may declare that a class or type of commercial vessel or hire and drive vessel is unsuitable for recreational use. Note See section 72. __________________ s. 8 -- 43 of 393 -- Part 1.3—Application Marine Safety Act 2010 No. 65 of 2010 25 PART 1.3—APPLICATION 9 Act only applies to certain types of voyages (1) Unless specifically provided otherwise by a provision of this Act, this Act applies to and in relation to— (a) a trading vessel proceeding on an intra-state voyage; and (b) an Australian fishing vessel, a hire and drive vessel, or a recreational vessel, proceeding on— (i) an intra-state voyage; or (ii) that part of an inter-state voyage which began in Victoria where the vessel is not within the jurisdiction of another State or a Territory; and (c) a vessel connected with Victoria that is an Australian fishing vessel, a hire and drive vessel, or a recreational vessel, proceeding on an inter-state voyage which began in Victoria; and (d) an Australian fishing vessel proceeding on an inter-state voyage, a hire and drive vessel, or a recreational vessel, where the vessel is within State waters; and (e) any other vessel within State waters; and (f) any other vessel connected with Victoria, wherever it may be— and to and in relation to the owner, master and crew of any such vessel. (2) Unless specifically provided otherwise by a provision of this Act, the provisions of this Act relating to the registration of vessels, the certification of vessels or the crewing s. 9 -- 44 of 393 -- Part 1.3—Application Marine Safety Act 2010 No. 65 of 2010 26 requirements for vessels do not apply to or in relation to— (a) a trading vessel proceeding on an overseas voyage or an inter-state voyage; or (b) an Australian fishing vessel proceeding on an overseas voyage— or to or in relation to the owner, master or crew of any such vessel. (3) For the purpose of this section, a vessel is connected with Victoria if it— (a) is registered or deemed to be registered under the Shipping Registration Act 1981 of the Commonwealth with a home port in Victoria; or (b) is owned by a body corporate that is established under Victorian law or that has its principal office or place of business in Victoria, or is in the possession of such a body corporate by virtue of a charter; or (c) is owned by any person whose chief office or place of business in respect of the management of the vessel is in Victoria, or is in the possession of such a person by virtue of a charter; or (d) is registered or licensed or required to be registered or licensed under Victorian law. (4) In this section— (a) inter-state voyage and overseas voyage have the same respective meanings as in the Commonwealth Navigation Act; and (b) intra-state voyage means a voyage other than an inter-state voyage or an overseas voyage. s. 9 -- 45 of 393 -- Part 1.3—Application Marine Safety Act 2010 No. 65 of 2010 27 10 Act does not apply to defence force vessels This Act does not apply to or in relation to a vessel belonging to the naval, military or air forces of the Commonwealth or of any other country. 11 Interaction with the Occupational Health and Safety Act 2004 (1) If a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act (OHS provision) applies to an activity in respect of which a duty is imposed under Parts 2.2 to 2.6, the OHS provision continues to apply, and must be observed in addition to Parts 2.2 to 2.6 and any regulations made under this Act made for the purposes of those Divisions. Note See also section 51 of the Interpretation of Legislation Act 1984. (2) If a provision of this Act or the regulations made under this Act is inconsistent with a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act, the Occupational Health and Safety Act 2004 or the regulations made under it prevail to the extent of the inconsistency. (3) Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. (4) Evidence of a relevant contravention of this Act or the regulations made under this Act is admissible in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. s. 10 -- 46 of 393 -- Part 1.3—Application Marine Safety Act 2010 No. 65 of 2010 28 12 Transport Integration Act 2010 This Act is transport legislation within the meaning of the Transport Integration Act 2010. 13 Crown to be bound (1) This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act makes the Commonwealth or a State or Territory liable to be prosecuted for an offence. (3) Subsection (2) does not affect any liability of any servant or agent of the Commonwealth or of a State or Territory to be prosecuted for an offence. __________________ s. 12 -- 47 of 393 -- Part 1.4—Objects and Principles Marine Safety Act 2010 No. 65 of 2010 29 PART 1.4—OBJECTS AND PRINCIPLES Division 1—Objects 14 Objects The objects of this Act are to promote— (a) the safety of marine operations; and (b) the effective management of safety risks in marine operations and in the marine operating environment; and (c) continuous improvement in marine safety management; and (d) public confidence in the safety of marine operations; and (e) involvement of relevant stakeholders in marine safety; and (f) a culture of safety among all participants in the marine operating environment. Division 2—Principles of marine safety 15 Principle of shared responsibility (1) Marine safety is the shared responsibility of— (a) owners of vessels; and (b) marine safety workers; and (c) persons involved in recreational boating activities; and (d) pilots and pilotage services providers; and (e) port management bodies, local port managers and waterway managers; and s. 14 -- 48 of 393 -- Part 1.4—Objects and Principles Marine Safety Act 2010 No. 65 of 2010 30 (f) other persons who— (i) design, commission, construct, manufacture, supply, install, maintain, repair or modify marine safety infrastructure, vessels or marine safety equipment; and (ii) supply marine safety infrastructure operations to port management bodies; and (iii) supply vessel operations to owners of commercial vessels; and (g) the Safety Director; and (h) the public. (2) The level and nature of responsibility that a person referred to in subsection (1), or falling within a class of person referred to in subsection (1), has for marine safety is dependent on the nature of the risk to marine safety that the person creates from the carrying out of an activity (or the making of a decision) and the capacity that person has to control, eliminate or mitigate that risk. 16 Principle of accountability for managing safety risks Managing risks associated with the carrying out of marine operations is the responsibility of the person best able to control that risk. 17 Principle of integrated risk management If approaches to managing risks associated with any particular vessel, marine safety equipment or marine safety infrastructure have potential impacts on any other vessel, marine safety equipment or marine safety infrastructure, the best practicable marine safety outcome should be sought. s. 16 -- 49 of 393 -- Part 1.4—Objects and Principles Marine Safety Act 2010 No. 65 of 2010 31 18 Principle of enforcement Enforcement of this Act and regulations made under this Act should be undertaken for the purpose of— (a) protecting public safety; (b) promoting improvement in marine safety; (c) removing incentive for any unfair commercial advantage that might be derived from contravening the marine safety requirements under this Act or the regulations; and (d) influencing the attitude and behaviour of persons whose actions may have adverse impacts on marine safety. 19 Principle of transparency Marine regulatory decision making processes should be timely and transparent. 20 Principle of participation, consultation and involvement of all affected persons The persons and classes of persons referred to in section 15 should— (a) participate in or be able to participate in; and (b) be consulted on; and (c) be involved in— the formulation and implementation of measures to manage risks to safety associated with marine operations. 21 Principle of equity of use of Victorian waterways A use of State waters will not be unduly favoured to the detriment of other uses of those waters. s. 18 -- 50 of 393 -- Part 1.4—Objects and Principles Marine Safety Act 2010 No. 65 of 2010 32 Division 3—Other matters 22 Effect of objects and marine safety principles The Parliament does not intend by this Part to create in any person any legal right or give rise to any civil cause of action. __________________ s. 22 -- 51 of 393 -- Part 2.1—The Concept of Ensuring Safety Marine Safety Act 2010 No. 65 of 2010 33 CHAPTER 2—MARINE SAFETY DUTIES PART 2.1—THE CONCEPT OF ENSURING SAFETY 23 The concept of ensuring safety (1) To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety, requires the person to— (a) eliminate risks to safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable. (2) To avoid doubt, for the purposes of Parts 2.2 to 2.6 or regulations made for the purposes of those Parts regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety— (a) the likelihood of the hazard or risk concerned eventuating; (b) the degree of harm that would result if the hazard or risk eventuated; (c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; (d) the availability and suitability of ways to eliminate or reduce the hazard or risk; (e) the cost of eliminating or reducing the hazard or risk. __________________ s. 23 -- 52 of 393 -- Part 2.2—Safety Duties of Port Management Bodies and Owners of Commercially Operated Vessels Marine Safety Act 2010 No. 65 of 2010 34 PART 2.2—SAFETY DUTIES OF PORT MANAGEMENT BODIES AND OWNERS OF COMMERCIALLY OPERATED VESSELS 24 Duties of port management bodies to ensure safety of marine safety infrastructure operations (1) A port management body must, so far as is reasonably practicable, ensure the safety of marine safety infrastructure operations carried out by the port management body or supplied to that body. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) Without limiting subsection (1), a port management body contravenes that subsection if the port management body fails to do any of the following— (a) provide or maintain marine safety infrastructure that is, so far as is reasonably practicable, safe; (b) provide or maintain systems related to navigation and marine safety in port waters that are, so far as is reasonably practicable, safe; (c) control the provision of services related to navigation and marine safety in port waters so that those services are provided in a manner that are, so far as is reasonably practicable, safe; (d) provide, so far as is reasonably practicable, information, instruction, control in matters relating to navigation and marine safety in port waters to enable users of a port under s. 24 -- 53 of 393 -- Part 2.2—Safety Duties of Port Management Bodies and Owners of Commercially Operated Vessels Marine Safety Act 2010 No. 65 of 2010 35 the control of the port management body to undertake vessel operations safely; (e) provide or maintain systems of marine safety work that are, so far as is reasonably practicable, safe; (f) provide, so far as is reasonably practicable, such information, instruction, training or supervision to marine safety workers as is necessary to enable those workers to perform their marine safety work in a way that is safe. (3) An offence against subsection (1) is an indictable offence. 25 Duty of owners of commercially operated vessels to ensure safety of vessels, marine safety equipment and operations (1) An owner of a commercially operated vessel must, so far as is reasonably practicable, ensure the safety of— (a) vessel design and supply activities carried out by the owner or supplied to the owner; (b) marine safety equipment design and construction activities carried out by the owner or supplied to the owner; (c) vessel operations carried out by the owner or supplied to the owner. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. s. 25 -- 54 of 393 -- Part 2.2—Safety Duties of Port Management Bodies and Owners of Commercially Operated Vessels Marine Safety Act 2010 No. 65 of 2010 36 (2) Without limiting subsection (1), an owner of a commercially operated vessel contravenes that subsection if the owner fails to do any of the following— (a) provide or maintain a commercially operated vessel or marine safety equipment that is, so far as is reasonably practicable, safe; (b) implement and maintain a safety management system that ensures that vessel operations are so far as is reasonably practicable, safe; (c) provide, so far as is reasonably practicable, such— (i) information, instruction, training or supervision to marine safety workers as is necessary to enable those workers to perform their marine safety work in a way that is safe; and (ii) information to persons on board a commercially operated vessel (other than marine safety workers) as is necessary to enable those persons to ensure their safety. (3) Without limiting subsection (1), an owner of a commercially operated vessel contravenes that subsection if— (a) the owner operates, or causes or allows to be operated, the commercially operated vessel and that vessel is an unsafe vessel; (b) the commercially operated vessel is, while in State waters, so loaded that the load line of the vessel is submerged. s. 25 -- 55 of 393 -- Part 2.2—Safety Duties of Port Management Bodies and Owners of Commercially Operated Vessels Marine Safety Act 2010 No. 65 of 2010 37 (4) An offence against subsection (1) is an indictable offence. __________________ s. 25 -- 56 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 38 PART 2.3—SAFETY DUTIES OF MARINE DESIGNERS, MANUFACTURERS AND SUPPLIERS AND MARINE CONTRACTORS 26 Safety duties in relation to design, manufacture and supply of vessels (1) A person who designs, commissions, constructs, manufactures, supplies, maintains, repairs or modifies a vessel must— (a) ensure, so far as is reasonably practicable, that the vessel is safe if it is used for a purpose for which it was designed, commissioned, constructed, manufactured, supplied, maintained, repaired or modified; (b) carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section; (c) in the case of a vessel to which paragraph (a) applies, take such action as is necessary to ensure that there will be available in connection with the use of the vessel adequate information about— (i) the use for which the vessel was designed, commissioned, constructed, manufactured, supplied, maintained, repaired or modified; and (ii) the results of any testing or examination referred to in paragraph (b); and (iii) any conditions necessary to ensure the vessel is safe if it is used for a purpose for which it was designed, commissioned, constructed, manufactured, supplied, maintained, repaired or modified. s. 26 -- 57 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 39 Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) An offence against subsection (1) is an indictable offence. (3) For the purposes of subsection (1), if the person who supplies the vessel— (a) carries on the business of financing the acquisition of the thing by customers; and (b) has, in the course of that business, acquired an interest in the vessel solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and (c) has not taken possession of the vessel or has taken possession of it solely for the purpose of passing possession to that customer— the reference in subsection (1) to the person who supplies that vessel is instead taken to be a reference to the third person. 27 Safety duties in relation to design, manufacture and supply of marine safety equipment (1) A person who— (a) designs, commissions, constructs, manufactures, supplies, installs, maintains, repairs or modifies any thing; and (b) knows, or ought reasonably to know, that the thing is, or is to be used as, marine safety equipment— must— s. 27 -- 58 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 40 (c) ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, constructed, manufactured, supplied, installed, maintained, repaired or modified; (d) carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section; (e) in the case of a thing to which paragraph (c) applies, take such action as is necessary to ensure that there will be available in connection with the use of the thing adequate information about— (i) the use for which the thing was designed, commissioned, constructed, manufactured, supplied, installed, maintained, repaired or modified; and (ii) the results of any testing or examination referred to in paragraph (d); and (iii) any conditions necessary to ensure the thing is safe if it is used for a purpose for which it was designed, commissioned, constructed, manufactured, supplied, installed, maintained, repaired or modified. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) An offence against subsection (1) is an indictable offence. s. 27 -- 59 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 41 (3) For the purposes of subsection (1), if the person who supplies the thing— (a) carries on the business of financing the acquisition of the thing by customers; and (b) has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and (c) has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer— the reference in subsection (1) to the person who supplies that thing is instead taken to be a reference to the third person. 28 Duties of suppliers of marine safety infrastructure operations to port management bodies (1) A person who supplies marine safety infrastructure operations to a port management body must, so far as is reasonably practicable, ensure the safety of those operations. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) Without limiting subsection (1), a person contravenes that subsection if the person fails to do any of the following— (a) provide or maintain marine safety infrastructure that is, so far as is reasonably practicable, safe; (b) provide or maintain systems of marine safety work that are, so far as is reasonably practicable, safe; s. 28 -- 60 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 42 (c) provide, so far as is reasonably practicable, such— (i) information, instruction, training or supervision to marine safety workers as is necessary to enable those workers to perform their marine safety work in a way that is safe; and (ii) information to persons (other than marine safety workers) at, or in the immediate area around, a place where marine safety work is being performed as is necessary to enable those persons to ensure their safety. (3) An offence against subsection (1) is an indictable offence. 29 Duties of suppliers of vessel operations to owners of commercial vessels (1) A person who is not a marine safety worker and who supplies vessel operations to an owner of a commercial vessel must, so far as is reasonably practicable, ensure the safety of those operations. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. (2) Without limiting subsection (1), a person contravenes that subsection if the person fails to do any of the following— (a) in the case of a pilotage service provider, while supplying pilotage services ensure, so far as is reasonably practicable, the safety of those services; (b) provide or maintain systems of marine safety work that are, so far as is reasonably practicable, safe; s. 29 -- 61 of 393 -- Part 2.3—Safety Duties of Marine Designers, Manufacturers and Suppliers and Marine Contractors Marine Safety Act 2010 No. 65 of 2010 43 (c) provide, so far as is reasonably practicable, such— (i) information, instruction, training or supervision to marine safety workers as is necessary to enable those workers to perform their marine safety work in a way that is safe; and (ii) information to persons on board a commercial vessel (other than marine safety workers) as is necessary to enable those persons to ensure their safety. (3) Without limiting subsection (1), a person contravenes that subsection if— (a) the person operates, or causes or allows to be operated, the commercial vessel and that vessel is an unsafe vessel; (b) the commercial vessel is, while in State waters, so loaded that the load line of the vessel is submerged. (4) An offence against subsection (1) is an indictable offence. __________________ s. 29 -- 62 of 393 -- Part 2.4—Marine Safety Worker Duties Marine Safety Act 2010 No. 65 of 2010 44 PART 2.4—MARINE SAFETY WORKER DUTIES 30 Duties of marine safety workers (1) A marine safety worker, when carrying out marine safety work, must— (a) take reasonable care for his or her own safety; and (b) take reasonable care for the safety of persons who may be affected by the marine safety worker's acts or omissions; and (c) co-operate with the regulated entity employing or engaging them with respect to any action taken by the entity to comply with a requirement imposed by or under this Act or the regulations. Penalty: 1800 penalty units. (2) A marine safety worker, when carrying out marine safety work, must not intentionally or recklessly interfere with or misuse anything provided to them by the regulated entity employing or engaging them— (a) in the interests of safety; or (b) under this Act or the regulations. Penalty: 1800 penalty units. (3) A marine safety worker, when carrying out marine safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of marine safety infrastructure at risk. Penalty: 1800 penalty units. s. 30 -- 63 of 393 -- Part 2.4—Marine Safety Worker Duties Marine Safety Act 2010 No. 65 of 2010 45 (4) For the purposes of subsection (1)(a) or (b), in determining whether a marine safety worker failed to take reasonable care, regard must be had to what the marine safety worker knew about the relevant circumstances. (5) An offence against subsection (1), (2) or (3) is an indictable offence. (6) In this section regulated entity means a person to whom section 24, 25, 26, 27, 28 or 29 applies. __________________ s. 30 -- 64 of 393 -- Part 2.5—Safety Duties Relating to Recreational Vessel Operations Marine Safety Act 2010 No. 65 of 2010 46 PART 2.5—SAFETY DUTIES RELATING TO RECREATIONAL VESSEL OPERATIONS 31 Masters of recreational vessels must take reasonable care (1) A master of a recreational vessel must, when carrying out vessel operations— (a) take reasonable care for his or her own safety; and (b) take reasonable care for the safety of persons who may be affected by the master's acts or omissions. Penalty: 60 penalty units. (2) A master of a recreational vessel, when carrying out vessel operations, must not wilfully or recklessly place the safety of another person on board, or in the immediate vicinity of, the recreational vessel at risk. Penalty: 60 penalty units. (3) For the purposes of subsection (1)(a) or (b), in determining whether a master of a recreational vessel failed to take reasonable care, regard must be had to what the master knew about the relevant circumstances. 32 Persons participating in the operation of a recreational vessel must take reasonable care (1) A person (other than the master of a recreational vessel) who operates a recreational vessel must, when doing so under the direction of the master of the recreational vessel— (a) take reasonable care for his or her own safety; and s. 31 -- 65 of 393 -- Part 2.5—Safety Duties Relating to Recreational Vessel Operations Marine Safety Act 2010 No. 65 of 2010 47 (b) take reasonable care for the safety of persons who may be affected by his or her acts or omissions; and (c) comply with a direction of the master that the master has given to the person— (i) in order for the master to operate the vessel safely; or (ii) in order for the master or person to comply with a requirement imposed under this Act or the regulations. Penalty: 25 penalty units. (2) A person (other than the master of a recreational vessel) who operates a recreational vessel must not intentionally or recklessly interfere with or misuse anything provided to them by the master— (a) in the interests of safety; or (b) in accordance with this Act or the regulations. Penalty: 60 penalty units. (3) A person (other than the master of a recreational vessel) who operates a recreational vessel must not wilfully or recklessly place the safety of another person on board, or in the immediate vicinity of, the recreational vessel at risk. Penalty: 60 penalty units. (4) For the purposes of subsection (1)(a) or (b), in determining whether a person who is subject to that subsection failed to take reasonable care, regard must be had to what the person knew about the relevant circumstances. s. 32 -- 66 of 393 -- Part 2.5—Safety Duties Relating to Recreational Vessel Operations Marine Safety Act 2010 No. 65 of 2010 48 (5) A person is not guilty of an offence against subsection (1)(c)— (a) if the master of the vessel did not warn the person that a failure to comply with a direction could result in the person being charged with an offence against that subsection; or (b) if the person has a reasonable excuse for not complying with a direction of the master. __________________ s. 32 -- 67 of 393 -- Part 2.6—Safety Duties of Passengers on Vessels Marine Safety Act 2010 No. 65 of 2010 49 PART 2.6—SAFETY DUTIES OF PASSENGERS ON VESSELS 33 Passengers on board vessels must take reasonable care (1) A passenger on board a vessel must— (a) take reasonable care for his or her own safety; and (b) comply with a direction of the master of the vessel that the master has given to the person— (i) in order for the master to operate the vessel safely; or (ii) in order for the master or passenger to comply with a requirement imposed under this Act or the regulations. Penalty: 25 penalty units. (2) A passenger on board a vessel must not intentionally or recklessly interfere with or misuse anything provided to them by the master of the vessel— (a) in the interests of safety; or (b) in accordance with this Act or the regulations. Penalty: 60 penalty units. (3) A passenger on board a vessel must not wilfully or recklessly place the safety of another person on board, or in the immediate vicinity of, the vessel at risk. Penalty: 60 penalty units. (4) For the purposes of subsection (1)(a), in determining whether a passenger on board a vessel failed to take reasonable care, regard must s. 33 -- 68 of 393 -- Part 2.6—Safety Duties of Passengers on Vessels Marine Safety Act 2010 No. 65 of 2010 50 be had to what the passenger knew about the relevant circumstances. (5) A passenger on board a vessel is not guilty of an offence against subsection (1)(b)— (a) if the master of the vessel did not warn the passenger that a failure to comply with a direction could result in the passenger being charged with an offence against that subsection; or (b) if the passenger has a reasonable excuse for not complying with a direction of the master. __________________ s. 33 -- 69 of 393 -- Part 2.7—Other Matters Marine Safety Act 2010 No. 65 of 2010 51 PART 2.7—OTHER MATTERS 34 Single charge for multiple contraventions of certain duties (1) This section applies to— (a) a contravention of a provision of Parts 2.2 to 2.6 by a person; and (b) a contravention of such a provision for which an officer of a body corporate, partnership or unincorporated body or association (including a body corporate, partnership or unincorporated body or association representing the Crown) is liable. Note For liability of officers, see Part 8.4. (2) Subject to any contrary court order, two or more contraventions may be charged as a single offence if they arise out of the same factual circumstances. (3) This section does not authorise contraventions of two or more provisions of Parts 2.2 to 2.6 to be charged as a single offence. (4) If two or more contraventions are charged as a single offence, a single penalty only may be imposed in respect of the contraventions. 35 Civil liability not affected by Parts 2.2 to 2.6 Nothing in Parts 2.2 to 2.6 is to be construed as— (a) conferring a right of action in civil proceedings in respect of a contravention of a provision of any of those Parts; or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or s. 34 -- 70 of 393 -- Part 2.7—Other Matters Marine Safety Act 2010 No. 65 of 2010 52 (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, with respect to breaches of duties or obligations imposed by the regulations. __________________ s. 35 -- 71 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 53 CHAPTER 3—OPERATION OF VESSELS PART 3.1—REGISTRATION OF RECREATIONAL VESSELS 36 Purposes of registration The purposes of registration are— (a) to enable the operation of vessels on State waters to be regulated for reasons of safety; (b) to ensure that vessels which are used on State waters meet prescribed safety standards; (c) to provide a method of establishing the identity of each vessel which is used on State waters and of the person who is responsible for it. 37 Offence if vessel not registered (1) An owner of a vessel must not cause or allow the vessel to be operated on State waters unless that vessel is— (a) registered under this Part; or (b) exempted from registration— (i) by the regulations; or (ii) by a notice given by the Safety Director under section 260. Penalty: 60 penalty units. (2) A master of a vessel must not operate a vessel on State waters unless that vessel— (a) is registered under this Part; or s. 36 -- 72 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 54 (b) exempted from registration— (i) by the regulations; or (ii) by a notice given by the Safety Director under section 260. Penalty: 60 penalty units. (3) A person must not, being the owner or master of a vessel— (a) cause or allow the vessel to be operated in breach of any condition of its registration; or (b) employ or engage a person to operate the vessel in breach of any condition of its registration. Penalty: 60 penalty units. 38 Vessel may be registered in one name only A vessel may only be registered in the name of a natural person who is of or over the age of 14 years. 39 Effecting registration, renewal or transfer (1) Registration, renewal of registration and transfer of registration may be applied for, and granted or refused, only in accordance with this Act and the regulations. (2) The Safety Director must register a vessel in respect of which an application for registration is made if— (a) the vessel meets any prescribed requirements for registration; and (b) the applicant complies with the provisions of this Act and the regulations relating to registration. s. 38 -- 73 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 55 (3) Regulations made under this Act must not require the payment of any fees, rates or charges in respect of the registration of a vessel that— (a) is used or intended to be used primarily for search and rescue purposes; and (b) is owned by an organisation approved by the Safety Director for the purposes of this subsection. 40 Safety Director may impose registration conditions (1) The Safety Director may, at the time of registering a vessel, make the registration subject to conditions. (2) A condition of registration imposed under subsection (1) must not restrict the distance offshore that a vessel may be operated based on the length of the vessel. 41 Prescribed conditions on registration (1) In addition to any conditions imposed by the Safety Director under section 40, the registration of a prescribed class or type of vessel may be subject to prescribed conditions. (2) A prescribed condition of registration of a prescribed class or type of vessel must not restrict the distance offshore that the vessel may be operated based on the length of the vessel. 42 Register of registered vessels (1) The Safety Director must establish and maintain a register of all registered vessels and previously registered vessels. (2) The register of registered vessels may contain any other information that is prescribed. (3) The register of registered vessels does not provide evidence of title to any vessel. s. 40 -- 74 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 56 43 Safety Director may cancel or suspend registration of a vessel (1) The Safety Director must cancel the registration of a vessel if— (a) the registered person requests the Safety Director in writing to cancel the registration of that vessel; or (b) the Safety Director is satisfied that the vessel has been stolen and not recovered or has been destroyed; or (c) the Safety Director is satisfied that false or misleading information has been provided in connection with the registration of the vessel. (2) The Safety Director may, by written notice served on the registered person, suspend the registration of the vessel if— (a) the Safety Director has considered a report in relation to the vessel prepared by a member of the police force or a transport safety officer; and (b) based on the report, the Safety Director is satisfied that the vessel does not comply with this Act or the regulations. (3) The Safety Director must specify in the notice served under subsection (2)— (a) why the vessel does not comply with this Act or the regulations; and (b) how the person may demonstrate to the Safety Director that the deficiencies and defects in the vessel have been remedied. s. 43 -- 75 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 57 (4) If the registration of a vessel has been suspended under subsection (2), the Safety Director may during the current period of registration for that vessel, by written notice served on the registered person, withdraw the notice served under subsection (2) if— (a) the registered person has demonstrated to the Safety Director that the deficiencies and defects in the vessel have been remedied; and (b) the Safety Director is satisfied that the vessel complies with this Act and the regulations. 44 Cancellation of registration by court (1) A court convicting a person of an offence against section 60 may, if the circumstances warrant it, order the cancellation of the registration of the vessel in respect of the which the offence was committed, if that vessel is owned by that person, and order the Safety Director not to register that vessel again during the period specified by the court. (2) If the court considers that another person who is not present in court may be substantially affected by an order made under subsection (1), the court must issue a summons to that other person to show cause why the order should not be made. (3) On the return of the summons, the court may, after hearing the evidence brought before it— (a) refuse to order that the registration be cancelled; or (b) order that the registration be cancelled, and order the Safety Director not to register that vessel again during the period specified by the court. s. 44 -- 76 of 393 -- Part 3.1—Registration of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 58 (4) The court must cause particulars of an order made under this section to be sent immediately to the Safety Director and the Safety Director must give effect to the order as soon as possible. __________________ s. 44 -- 77 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 59 PART 3.2—LICENSING OF MASTERS OF RECREATIONAL VESSELS Division 1—Purposes 45 Purposes of licensing The purposes of licensing masters of recreational vessels are— (a) to ensure that people who are in charge of or in command of registered recreational vessels are competent masters; and (b) to ensure that those masters are aware of safe operating practices and relevant marine safety laws; and (c) to ensure that people who are, or who become, unsuited to be the master of a registered recreational vessel are not permitted to be the master of a registered recreational vessel; and (d) to enable the identification of masters for the purposes of law enforcement and the investigation of, and response to, marine incidents and accidents. Division 2—Offences for unlicensed master of certain classes of registered recreational vessels 46 Offence to be a master of registered recreational vessel without a marine licence or in breach of conditions of marine licence (1) A person must not be the master of a registered recreational vessel unless the person holds a marine licence. Penalty: 20 penalty units. s. 45 -- 78 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 60 (2) A master of a registered recreational vessel must operate the vessel in accordance with any prescribed condition or any condition specified in the marine licence the master holds. Penalty: 20 penalty units. 47 Offence to be a master of prescribed type of registered recreational vessel without licence endorsement (1) A person must not be the master of a prescribed class or type of registered recreational vessel unless the person has a licence endorsement for that class or type of vessel. Penalty: 20 penalty units. (2) A master of a prescribed class or type of registered recreational vessel must operate the vessel in accordance with any prescribed condition or any condition specified in the licence endorsement for that class or type of vessel. Penalty: 20 penalty units. 48 Offence to be the master of a registered recreational vessel undertaking prescribed activity without licence endorsement (1) A person must not be the master of a registered recreational vessel being used to undertake a prescribed type of activity unless the person has a licence endorsement in respect of that prescribed type of activity. Penalty: 20 penalty units. (2) A master of a registered recreational vessel must operate the vessel in accordance with any prescribed condition or any condition specified in a licence endorsement referred to in subsection (1). Penalty: 20 penalty units. s. 47 -- 79 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 61 49 Offence to be the master of a regulated hire and drive vessel without a marine licence or in breach of conditions of marine licence (1) A person must not be the master of a regulated hire and drive vessel unless the person holds a marine licence. Penalty: 20 penalty units. (2) A master of a regulated hire and drive vessel must operate the vessel in accordance with any prescribed condition or any condition specified in the marine licence the master holds. Penalty: 20 penalty units. 50 Offence to be the master of a prescribed type of regulated hire and drive vessel without licence endorsement (1) A person must not be the master of a prescribed class or type of regulated hire and drive vessel unless the person has a licence endorsement for that class or type of vessel. Penalty: 20 penalty units. (2) A master of a prescribed class or type of regulated hire and drive vessel must operate the vessel in accordance with any prescribed condition or any condition specified in the licence endorsement for that class or type of vessel. Penalty: 20 penalty units. s. 49 -- 80 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 62 51 Offence to be the master of a regulated hire and drive vessel undertaking prescribed activity without licence endorsement (1) A person must not be the master of a regulated hire and drive vessel being used to undertake a prescribed type of activity unless the person has a licence endorsement in respect of that prescribed type of activity. Penalty: 20 penalty units. (2) A master of a regulated hire and drive vessel must operate the vessel in accordance with any prescribed condition or any condition specified in a licence endorsement referred to in subsection (1). Penalty: 20 penalty units. 52 Offence to allow a non-licensed person to be the master of a registered recreational vessel (1) The owner of a registered recreational vessel must not cause or allow another person to be the master of that vessel unless that person is the holder of a marine licence. Penalty: 10 penalty units. (2) It is a defence to a charge under this section if the owner reasonably believes that the person held the appropriate marine licence which (as the case requires) is endorsed with the appropriate licence endorsement. s. 51 -- 81 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 63 Division 3—General licensing provisions 53 General marine licence (1) The Safety Director may, in accordance with the regulations— (a) grant or renew a general marine licence to a person if— (i) the person is of or over the age of 16 years; and (ii) the person has made an application for the licence in accordance with the regulations and the person is, in accordance with the regulations, eligible to apply for the licence; and (iii) the Safety Director is satisfied that the person has met any requirement of the Safety Director under subsection (2); or (b) refuse to grant or renew a general marine licence; or (c) vary the conditions of a general marine licence; or (d) refuse to vary the conditions of a general marine licence. (2) Before granting a general marine licence, the Safety Director may require the applicant— (a) to— (i) pass any test of a prescribed type about the operation of recreational vessels or undergo any training about the operation of recreational vessels that the Safety Director considers is appropriate, or both; or (ii) have any prescribed qualification; and s. 53 -- 82 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 64 (b) to comply with any prescribed procedures or requirements. (3) A general marine licence authorises the holder to be the master of the recreational vessels to which the licence applies for the term, and subject to any conditions, specified in the licence or prescribed by the regulations. (4) An application for a general marine licence must be made in accordance with the regulations. 54 Restricted marine licence (1) The Safety Director may, in accordance with the regulations— (a) grant or renew a restricted marine licence to a person if— (i) the person is of or over the age of 12 years and less than 16 years; and (ii) the person has made an application for the licence in accordance with the regulations and the person is, in accordance with the regulations, eligible to apply for the licence; and (iii) the Safety Director is satisfied that the person has met any requirement of the Safety Director under subsection (2); or (b) refuse to grant or renew a restricted marine licence; or (c) vary the conditions of a restricted marine licence; or (d) refuse to vary the conditions of a restricted marine licence. s. 54 -- 83 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 65 (2) Before granting a restricted marine licence, the Safety Director may require the applicant— (a) to— (i) pass any test of a prescribed type about the operation of recreational vessels or undergo any training about the operation of recreational vessels that the Safety Director considers is appropriate, or both; or (ii) have any prescribed qualification; and (b) to comply with any prescribed procedures or requirements. (3) A restricted marine licence authorises the holder to be the master of the recreational vessels to which the licence applies for the term, and subject to any conditions, specified in the licence or prescribed by the regulations. (4) An application for a restricted marine licence must be made in accordance with the regulations. (5) If the holder of a restricted marine licence attains 16 years, the licence held by that person is taken to be a general marine licence. 55 Licence endorsement (1) A specified person may, in accordance with the regulations, apply for an endorsement of a marine licence the Safety Director has granted, or will grant, to enable that specified person to be the master of— (a) a prescribed class or type of vessel; or (b) a vessel undertaking a prescribed type of activity. s. 55 -- 84 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 66 (2) A specified person is a person— (a) who has applied for a marine licence; or (b) who is the holder of a marine licence— and who satisfies the Safety Director that he or she is qualified to be the master of a prescribed class or type of vessel or a vessel undertaking a prescribed type of activity. (3) An endorsed marine licence authorises the holder, subject to any conditions specified in the endorsement or prescribed by the regulations, to be the master of— (a) a prescribed class or type of vessel; or (b) a vessel undertaking a prescribed type of activity. (4) The Safety Director may, in accordance with the regulations— (a) endorse the marine licence; or (b) refuse to endorse a marine licence; or (c) impose conditions of endorsement; or (d) vary the conditions of endorsement; or (e) cancel the endorsement. (5) Before endorsing a marine licence, the Safety Director may require the specified person— (a) to do either or both of the following— (i) pass any test of a prescribed type about the operation of prescribed classes or types of vessel or the carrying out of prescribed types of activity that the Safety Director considers appropriate; s. 55 -- 85 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 67 (ii) undertake any training about the operation of recreational vessels that the Safety Director considers appropriate; or (b) to have any prescribed qualification; and (c) to comply with any prescribed procedures and requirements. 56 Safety Director may require a person to undergo testing (1) The Safety Director may require— (a) the holder of a marine licence (whether endorsed or not); or (b) an applicant for a marine licence or an applicant for an endorsement of a marine licence; or (c) an applicant for a variation of conditions of a marine licence or an endorsement of a marine licence— to undergo a test or tests of health or competence or any other appropriate test or tests to determine the matters specified in subsection (2). (2) For the purposes of subsection (1), the following matters are specified— (a) whether the person is unfit to be the master of— (i) a registered recreational vessel; or (ii) a registered recreational vessel of a prescribed class or type that may be used to undertake a prescribed activity; or (b) whether it may be dangerous for the person to be the master of any recreational vessel. s. 56 -- 86 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 68 (3) A test required by the Safety Director under this section must be carried out by a person of the class prescribed in relation to that class of test. (4) No action may be taken against a person who carries out a test under this section and who expresses to the Safety Director an opinion formed by that person as a result of the test. (5) No action may be taken against a person who, in good faith, reports to the Safety Director any information which discloses or suggests that— (a) the person is unfit to be the master of— (i) a registered recreational vessel; or (ii) a registered recreational vessel of a prescribed class or type that may be used to undertake a prescribed activity; or (b) it may be dangerous for the person to be master of a recreational vessel, whether or not that vessel is a prescribed class or type of vessel or is a vessel that may be used to undertake a prescribed activity. (6) A marine licence obtained by a person who is disqualified from obtaining a marine licence is of no effect. Division 4—Exemptions from requirement to hold marine licence 57 Exemptions applying to licences issued outside Victoria (1) A person is exempt from the requirements to hold a marine licence if the person— (a) has an appropriate licence granted, or certificate or other authority issued, in another State or a Territory and who was s. 57 -- 87 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 69 ordinarily resident in the granting or issuing State or Territory at the time of grant or issue; or (b) has an appropriate licence granted, or certificate or other authority issued, in another country and written in the English language or accompanied by an accurate English translation and who was ordinarily resident in that country at the time of grant or issue— that authorises the person to be the master of a registered recreational vessel of that class. (2) A person is not exempt or ceases to be exempt under subsection (1) in any of the following circumstances— (a) if the holder of the licence granted, or certificate or other authority issued, in another State or a Territory has resided in Victoria for a continuous period of more than 3 months; (b) if the holder of the licence granted or other authority issued in another country has a permanent visa issued by the Commonwealth for more than 3 months; (c) if the person is disqualified from operating a recreational vessel in another State or a Territory or another country or has his or her licence suspended; (d) if, in the reasonable opinion of the Safety Director, it may be dangerous for the person to operate a registered recreational vessel because of illness or bodily infirmity, defect or incapacity or because of the effects of treatment for any of those things. s. 57 -- 88 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 70 (3) If the Safety Director forms an opinion on the matter set out in subsection (2)(d), the Safety Director must give the person notice in writing of the following— (a) that he or she is no longer exempt from the requirement to hold a marine licence; (b) that he or she must not be the master of or operate a registered recreational vessel on State waters; (c) the reasons why that person is no longer exempt; (d) any action that may be taken by the person in order to regain the exemption; (e) the date by which the person must take that action. 58 Exemption from licensing requirements for masters of non-engined vessels A person who is the master of a registered recreational vessel that is— (a) engaged solely in sailing; and (b) is not using any mechanical means of propulsion— is exempt from the requirement to hold a marine licence. Division 5—Other licensing offences 59 Offence for overseas or interstate operator to fail to comply with the conditions of the licence or certificate A person who is exempted under section 57 from the requirement to comply with Division 2 because the person holds an appropriate licence or certificate in another State, a Territory or country, s. 58 -- 89 of 393 -- Part 3.2—Licensing of Masters of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 71 must not be the master of a registered recreational vessel in breach of any condition of that licence or certificate. Penalty: 20 penalty units. 60 Offence to be master of a registered recreational vessel while disqualified etc. A person must not be a master of a registered recreational vessel while any marine licence granted to the person is suspended or during a period that the person is disqualified from obtaining a marine licence. Penalty: 60 penalty units. 61 Offence not to have marine licence in person's possession A person who holds a marine licence granted under this Part must have the licence in his or her possession while being the master of a registered recreational vessel. Penalty: 5 penalty units. __________________ s. 60 -- 90 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 72 PART 3.3—CERTIFICATION OF COMMERCIAL VESSELS AND OPERATION Division 1—Safe construction certificates 62 Offence to operate or cause or allow a commercially operated vessel to be operated without a safe construction certificate (1) The owner of a commercially operated vessel must not operate the vessel, or cause or allow the vessel to be operated, unless there is a safe construction certificate issued and in effect in respect of the vessel. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (2) The master of a commercial vessel must not operate the vessel, or cause or allow the vessel to be operated, unless there is a safe construction certificate issued and in effect in respect of the vessel. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. 63 Offence to breach conditions of safe construction certificate (1) The owner of a commercially operated vessel must not operate the vessel, or cause or allow the vessel to be operated, in breach of any condition of the safe construction certificate issued in respect of the vessel. Penalty: 60 penalty units. s. 62 -- 91 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 73 (2) The master of a commercial vessel must not operate the vessel, or cause or allow the vessel to be operated, in breach of any condition of the safe construction certificate issued in respect of the vessel. Penalty: 60 penalty units. (3) It is a defence to a prosecution for an offence against subsection (2) if the master was acting under the instruction of the owner of the vessel. 64 Application for safe construction certificate (1) An owner of a commercially operated vessel or a fleet of commercially operated vessels may, in accordance with the regulations, apply to the Safety Director for a safe construction certificate in respect of the vessel or fleet of vessels . (2) An application for a safe construction certificate must— (a) specify the class or type of vessel or fleet of vessels to which the application relates; and (b) contain any prescribed information; and (c) be in the form determined by the Safety Director; and (d) be accompanied by the prescribed fee (if any). 65 Issue of safe construction certificate by the Safety Director (1) Subject to subsection (2), the Safety Director may issue a safe construction certificate to the owner of a commercially operated vessel or to the owner of a fleet of commercially operated vessels who has made an application under section 64. s. 64 -- 92 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 74 (2) The Safety Director must not issue a safe construction certificate to an applicant under subsection (1) unless the Safety Director is satisfied that the vessel or the fleet of vessels the subject of the application— (a) meets the prescribed standards for that class or type of vessel or vessels; and (b) meets any other prescribed requirements for that class or type of vessel or vessels. (3) A safe construction certificate is subject to any conditions imposed by the Safety Director or prescribed by the regulations. (4) A safe construction certificate may be issued for a period not exceeding 5 years. (5) The Safety Director may at any time require a vessel in respect of which a safe construction certificate has already been issued, and that is in effect, to be surveyed. (6) The Safety Director does not warrant that a vessel is safe by the issue of a safe construction certificate issued in respect of that vessel under this section. 66 Renewal of safe construction certificate (1) The owner of a commercially operated vessel or a fleet of commercially operated vessels may apply for a renewal of the safe construction certificate issued in respect of the vessel or fleet of vessels. (2) An application under subsection (1) must be made before the safe construction certificate expires. (3) Sections 64 and 65 apply to the renewal of a safe construction certificate as if a reference to a person who applied for a safe construction certificate in those sections were a reference to an owner of a commercially operated vessel or a fleet s. 66 -- 93 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 75 of commercially operated vessels who has applied for the renewal of the certificate issued. Division 2—Safe operation certificates 67 Offence to operate or cause or allow a commercially operated vessel to be operated without a safe operation certificate (1) The owner of a commercially operated vessel must not operate the vessel, or cause or allow the vessel to be operated, unless there is a safe operation certificate issued and in effect in respect of the vessel. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (2) The master of a commercial vessel must not operate the vessel, or cause or allow the vessel to be operated, unless there is a safe operation certificate issued and in effect in respect of the vessel. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. 68 Offence to breach conditions of safe operation certificate (1) The owner of a commercially operated vessel must not operate the vessel, or cause or allow the vessel to be operated, in breach of any condition of the safe operation certificate issued in respect of the vessel. Penalty: 60 penalty units. s. 67 -- 94 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 76 (2) The master of a commercial vessel must not operate the vessel, or cause or allow the vessel to be operated in breach of any condition of the safe operation certificate issued in respect of the vessel. Penalty: 60 penalty units. (3) It is a defence to a prosecution for an offence against subsection (2) if the master was acting under the instruction of the owner of the vessel. 69 Application for a safe operation certificate (1) An owner of a commercially operated vessel or a fleet of commercially operated vessels may, in accordance with the regulations, apply to the Safety Director for a safe operation certificate in respect of that vessel or fleet of vessels. (2) An owner of a commercially operated vessel or a fleet of commercially operated vessels may, in accordance with the regulations, apply to the Safety Director for approval to use the vessel or fleet of vessels, for recreational purposes. (3) An application for a safe operation certificate must— (a) specify the class or type of vessel or fleet of vessels to which the application relates; and (b) contain any prescribed information; and (c) be in the form determined by the Safety Director; and (d) be accompanied by the prescribed fee (if any). s. 69 -- 95 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 77 70 Issue of safe operation certificate by the Safety Director (1) Subject to subsection (2), the Safety Director may issue a safe operation certificate to the owner of a commercially operated vessel or a fleet of commercially operated vessels who has made an application under section 69. (2) The Safety Director must not issue a safe operation certificate to an owner of a commercially operated vessel or an owner of a fleet of commercially operated vessels unless the Safety Director is satisfied that the owner of the vessel or fleet of vessels has the competence and capacity to operate the vessel or fleet safely. (3) A safe operation certificate is subject to any conditions imposed by the Safety Director or prescribed by the regulations. (4) A safe operation certificate issued under this section must include any prescribed information. (5) A safe operation certificate issued in respect of a fleet of commercially operated vessels must contain the identification details of each vessel in that fleet. (6) The Safety Director does not warrant that the vessel operations of the owner are safe by the issue of a safe operation certificate in respect of a vessel under this section. 71 Renewal of safe operation certificate (1) The owner of a commercially operated vessel or a fleet of commercially operated vessels may apply for the renewal of a safe operation certificate issued in respect of the vessel or fleet of vessels. (2) An application under subsection (1) must be made before the safe operation certificate expires. s. 70 -- 96 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 78 (3) Sections 69 and 70 apply to the renewal of a safe operation certificate as if a reference to a person who applied for a safe operation certificate in those sections were a reference to an owner of a commercially operated vessel or a fleet of commercially operated vessels who has applied for the renewal of the certificate issued. 72 Some commercial vessels or hire and drive vessels may be used recreationally (1) The owner of a commercially operated vessel or a fleet of commercially operated vessels may use that vessel or fleet of vessels recreationally if— (a) the owner has been granted an approval by the Safety Director under this section; and (b) the approval is specified in the safe operation certificate issued to the owner in respect of the vessel or fleet of vessels. (2) Subject to subsection (3), the Safety Director may— (a) approve a specific commercially operated vessel for recreational use; or (b) approve a specific fleet of commercially operated vessels for recreational use. (3) The Safety Director must not grant an approval under subsection (2) in respect of a vessel or a specific fleet of vessels if— (a) the vessel or fleet is of a class or type that has been declared under section 8 to be unsuitable for recreational use; or (b) the Safety Director is not satisfied that the owner of the vessel or fleet has the competence or capacity to safely operate the vessel or fleet for recreational use. s. 72 -- 97 of 393 -- Part 3.3—Certification of Commercial Vessels and Operation Marine Safety Act 2010 No. 65 of 2010 79 (4) An approval granted by the Safety Director under subsection (2) must— (a) be recorded on the safe operation certificate issued in respect of the vessel or fleet the subject of the approval; and (b) specify in the safe operation certificate the number of passengers that can be carried in the vessel when the vessel is being used recreationally. (5) An approval to use a commercially operated vessel for recreational purposes by the Safety Director under subsection (1) is subject to the following conditions— (a) the Safety Director must be notified by the owner, in accordance with the regulations, before every voyage when the vessel will be used recreationally; and (b) a person operating the vessel for a recreational purpose must comply with the requirements imposed under a relevant marine safety law that are applicable to the operation of recreational vessels; and (c) any other prescribed condition. (6) The owner of a commercially operated vessel that has been given approval to use the vessel recreationally under this section must comply with the conditions specified or provided for in subsection (5). Penalty: 60 penalty units. __________________ s. 72 -- 98 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 80 PART 3.4—CERTIFICATES OF COMPETENCY AND LOCAL KNOWLEDGE CERTIFICATES Division 1—Certificates of competency 73 Offence to allow operation of a commercial vessel by persons in breach of crewing and certification requirements (1) A person must not employ or engage another person to act as a master of or a crew member on a commercial vessel in any capacity for which a certificate of competency is required under the regulations unless that other person holds an appropriate certificate of competency. Penalty: 60 penalty units. (2) The owner of a commercial vessel must not cause or allow the vessel to be operated on State waters unless it is crewed in accordance with the regulations. Penalty: 60 penalty units. 74 Offence to operate vessel without appropriate certificate of competency A person must not act as a master of or a crew member on a commercial vessel in any capacity for which a certificate of competency is required under the regulations unless that person holds a certificate of competency that authorises that person to act in that capacity. Penalty: 60 penalty units. s. 73 -- 99 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 81 75 Offence not to comply with conditions of certificate of competency A person who holds a certificate of competency must comply with a condition of the certificate referred to in section 78(2). Penalty: 10 penalty units. 76 Owner must not direct, cause or allow person to operate vessel in breach of certificate condition The owner of a commercial vessel must not direct, cause or allow a person who is a master of the vessel, or a person who is operating the vessel, to breach a condition of the person's certificate of competency. Penalty: 60 penalty units. 77 Application for, and renewal of, certificate of competency (1) A person may, in accordance with the regulations, apply for a certificate of competency authorising the person to act as a master of, or as a crew member on, a commercial vessel. (2) A person who holds a certificate of competency may, in accordance with the regulations, apply for a renewal of the certificate to act as a master of, or a crew member on, a commercial vessel. 78 Issue and renewal of certificates of competency by the Safety Director (1) The Safety Director may, in accordance with the regulations— (a) issue a certificate of competency to a person that authorises the person to act as a master of or crew member on a commercial vessel; (b) renew a certificate of competency held by a person. s. 75 -- 100 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 82 (2) A certificate of competency issued or renewed under this section may be subject to conditions— (a) imposed by the Safety Director; (b) prescribed by the regulations. Note A certificate of competency may be cancelled or suspended under Part 4.6. 79 Application to vary conditions of certificate of competency (1) A person who holds a certificate of competency issued under section 78 may, in accordance with the regulations, apply to the Safety Director to have the conditions of the certificate varied. (2) On receiving an application under subsection (1), the Safety Director may, in accordance with the regulations, vary or refuse to vary the conditions of a certificate of competency. Division 2—Local knowledge certificates 80 Offence to navigate vessel without local knowledge certificate in waters requiring certificate The master of a commercial vessel must not— (a) enter or leave, or attempt to enter or leave, waters declared under section 81; or (b) navigate, or attempt to navigate, the vessel within waters declared under section 81— unless the master holds a local knowledge certificate in respect of those waters. Penalty: 120 penalty units. s. 79 -- 101 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 83 81 Declaration in relation to waters requiring local knowledge certificates for navigation in those waters The Safety Director, by notice published in the Government Gazette, may declare a part of State waters as waters in respect of which a local knowledge certificate is required to navigate a vessel. Note In making a declaration under this section the Safety Director must have regard to guidelines made by the Minister under section 31A of the Transport Integration Act 2010: see section 258(2). 82 Application for local knowledge certificates (1) A master of a commercial vessel who is a holder of a certificate of competency may apply to the Safety Director for the issue of a certificate. (2) An application under subsection (1) must— (a) be in the form determined by the Safety Director; and (b) be accompanied by— (i) evidence that the applicant has a certificate of competency for the type or class of vessel that he or she may operate; and (ii) evidence that the applicant has completed any training required by the Director; and (iii) evidence that the applicant has suitable qualifications and experience appropriate to the State waters to which the local knowledge certificate will apply; and (iv) the prescribed fee (if any). s. 81 -- 102 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 84 (3) The Safety Director— (a) may require the applicant to provide further information or material in respect of the application; and (b) may require the information or material to be verified; and (c) may require proof of the identity of the person making the application. 83 Issue of local knowledge certificate (1) On receiving an application under section 82(1), the Safety Director may issue a local knowledge certificate to the applicant if the Safety Director is satisfied that the applicant is qualified to hold a local knowledge certificate. (2) A local knowledge certificate issued under subsection (1) may be issued subject to any condition imposed by the Safety Director. (3) A condition referred to in subsection (2) may provide that the master holding the certificate is not required to use the services of a pilot in pilot required waters if the vessel that the master has command or charge of— (a) is a vessel of a type or class that the holder of the certificate is authorised to operate under a certificate of competency; and (b) is a vessel greater than 35 metres in length and operates either permanently, or for the time being solely, within the limits of port waters. (4) A local knowledge certificate issued under subsection (1)— (a) takes effect on the day that it is issued; and s. 83 -- 103 of 393 -- Part 3.4—Certificates of Competency and Local Knowledge Certificates Marine Safety Act 2010 No. 65 of 2010 85 (b) remains in effect for a period of 5 years after the date it is issued unless sooner suspended or cancelled. 84 Renewal of local knowledge certificate (1) A holder of a local knowledge certificate may apply for the renewal of the local knowledge certificate the person holds. (2) An application under subsection (1) must be made before the local knowledge certificate expires. (3) Sections 82(2) and 83 apply to the renewal of a local knowledge certificate as if a reference to a master who applied for a local knowledge certificate in those sections were a reference to the master who holds the local knowledge certificate who applied for the renewal of the local knowledge certificate. __________________ s. 84 -- 104 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 86 PART 3.5—VESSEL OPERATIONAL REQUIREMENTS Division 1—Unsafe vessels 85 Detention of unsafe vessels (1) The detention of an unsafe vessel under this section does not— (a) prevent a prosecution for an offence against section 87; (b) prevent a prosecution for breach of a safety duty by an owner or master of a vessel under Chapter 2. (2) The Safety Director may order a vessel that is on State waters or in any other part of the State to be provisionally detained if it appears to the Safety Director to be an unsafe vessel. (3) If the Safety Director makes an order under subsection (2), the Safety Director— (a) must, as soon as practicable, cause to be served on the owner or master of the vessel a notice of the detention and a written statement of the reasons for the detention; and (b) must request a transport safety officer to investigate and report to the Safety Director on the condition of the vessel and its equipment; and (c) may, on receipt of the report referred to in paragraph (b)— (i) order the release of the vessel; or (ii) if of the opinion that it is an unsafe vessel, order it to be finally detained either absolutely or until the performance of such conditions as the s. 85 -- 105 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 87 Safety Director considers necessary to ensure that the vessel is not an unsafe vessel; and (d) may at any time (and without any report) order the release of the vessel (with or without conditions) if satisfied that the vessel is not an unsafe vessel; and (e) must cause a copy of the report to be served on the owner or master of the vessel before an order for final detention is made; and (f) must cause a copy of an order for final detention to be served on the owner and master of the vessel (if their identity and whereabouts are known to the Safety Director). (4) If an order for the final detention of a vessel is made, the vessel must not be released until the Safety Director is satisfied that its further detention is no longer necessary, and orders its release. (5) The owner of a vessel must not cause or allow the vessel to be taken on a voyage if the owner knows that the vessel has been detained under this section and has not been duly released. Penalty: 240 penalty units. (6) The master of a vessel must not take the vessel on a voyage if the master knows that the vessel has been detained under this section and has not been duly released. Penalty: 240 penalty units. (7) An agent for a vessel that has been detained under this section and not duly released must not assist the owner or master of the vessel to contravene this section. Penalty: 240 penalty units. s. 85 -- 106 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 88 (8) A person must not obstruct or fail to comply with any reasonable requirement of a person appointed by the Safety Director to take charge of a vessel detained under this section in connection with the exercise of that person's functions. Penalty: 60 penalty units. 86 Offences in relation to load lines (1) The owner or master of a vessel must ensure that the vessel is marked in accordance with the regulations with any load lines as specified in the regulations. Penalty: 60 penalty units. (2) A person must not conceal, remove or alter any load lines with which the regulations require a vessel to be marked. Penalty: 60 penalty units. Division 2—Dangerous operation and acts 87 Dangerous operation of a recreational vessel, government vessel or hire and drive vessel (1) A person must not operate a recreational vessel, government vessel or hire and drive vessel at a speed or in a manner which is dangerous to the public, having regard to all the circumstances in the case. Penalty: 240 penalty units or imprisonment for 2 years. (2) Subsection (1) does not apply to a person who is complying with section 91. s. 86 -- 107 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 89 (3) The owner of a recreational vessel, government vessel or hire and drive vessel must not operate the vessel if the owner knows that it is an unsafe vessel. Penalty: 240 penalty units. (4) The master of a recreational vessel, government vessel or hire and drive vessel must not operate the vessel if the master knows that it is an unsafe vessel. Penalty: 240 penalty units. (5) On conviction for an offence under this section, the court must— (a) in the case of an offender who holds a marine licence under Part 2, cancel that licence and disqualify the offender from obtaining a licence for the time (not being less than 6 months) that the court thinks fit; or (b) in the case of an offender who does not hold a marine licence under Part 2, disqualify the offender from obtaining a licence for the time (not being less than 6 months) that the court thinks fit. 88 Acts tending to endanger vessel or crew (1) A person must not, wilfully or negligently— (a) do any act tending to the immediate loss or destruction of, or serious damage to, a vessel or its cargo; or (b) do any act tending immediately to endanger anyone belonging to or on board a vessel; or (c) fail to do any act that is reasonably necessary to protect a vessel or cargo from immediate loss, destruction or serious damage; or s. 88 -- 108 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 90 (d) fail to do any act that is reasonably necessary to protect anyone belonging to or on board a vessel from immediate danger. Penalty: 240 penalty units. (2) An offence against subsection (1)(a), (b), (c) or (d) is an indictable offence. Division 3—Other operational requirements 89 Tampering with a vessel A person must not, without just cause or excuse, tamper with a vessel that is owned by another person. Penalty: 60 penalty units. 90 Distress signals (1) A vessel must be provided in accordance with the regulations with the means of making distress signals. (2) A person on board a vessel must not knowingly use or display or knowingly cause or permit any person under his or her authority to use or display any recognised distress signal except in the case of a vessel being in distress. Penalty: 20 penalty units. (3) For the purposes of section 86 of the Sentencing Act 1991, compensation for loss or destruction of, or damage to, property as a result of the offence includes compensation for— (a) any work undertaken; or (b) any risk incurred; or (c) any loss sustained— in consequence of the signal having been taken to be a distress signal. s. 89 -- 109 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 91 91 Assistance to people in distress (1) If a master of a vessel believes that any other person in the vicinity of the vessel is in distress, the master must, unless he or she is unable to do so or in the circumstances of the case he or she considers it unsafe, unreasonable or unnecessary to do so, cause his or her vessel to proceed with all practicable speed to the assistance of that other person. Penalty: 60 penalty units. (2) If a master of a vessel contravenes subsection (1) an investigation may be conducted into the conduct of the master and his or her marine licence or certificate of competency may be cancelled or suspended and, for this purpose, the provisions of Part 4.5 with respect to investigations into accidents apply, with any necessary modifications, to investigations under this subsection. 92 Offence to fail to comply with direction of Safety Director regarding removal of vessel A person must not, without reasonable excuse, refuse or fail to comply with a direction given to the person by the Safety Director under item 24 of Schedule 1. Penalty: 120 penalty units. Division 4—Reporting of incidents 93 Reporting requirements in relation to reportable incidents (1) This section applies if a reportable incident occurs and a person is killed or injured or there is significant damage to property, or property is lost or destroyed, as a result of the incident. s. 91 -- 110 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 92 (2) The master of the vessel involved in the reportable incident, as the case requires— (a) must immediately stop the vessel, drop anchor or otherwise secure the vessel; and (b) must immediately render such assistance as he or she can; and (c) must at the scene of the reportable incident as soon as possible give his or her name and address and also the name and address of the owner of the vessel and the identifying mark of the vessel— (i) to any person who has been injured or to the owner of any property which has been damaged, destroyed or lost; or (ii) to a person representing the injured person or the owner of the property; and (d) must at the scene of the reportable incident as soon as possible give those names and addresses to any member of the police force who is present; and (e) if any person is injured and no member of the police force is present at the scene of the incident, must as soon as possible report in person full particulars of the incident at the police station that is most accessible from the scene of the incident if that station is open and, if it is not open, at the next most accessible station; and (f) if any property is damaged or destroyed and neither the owner of the property nor any person representing the owner nor any member of the police force is present at the scene of the incident, must as soon as possible report in person full particulars of the incident at the police station that is most s. 93 -- 111 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 93 accessible from the scene of the incident if that station is open and, if it is not open, at the next most accessible station. (3) If— (a) as a result of the reportable incident a person is killed or suffers serious injury; and (b) the master of the vessel knows or ought reasonably to have known that the reportable incident had occurred and had resulted in a person being killed or suffering serious injury; and (c) did not comply with subsection (2)(a) or (b) in relation to the reportable incident— the master of the vessel is guilty of an offence and liable to a penalty not exceeding 6 months imprisonment or 60 penalty units, or both. (4) If— (a) as a result of the reportable incident a person is killed or suffers serious injury; and (b) the master of the vessel does not comply with subsection (2)(c), (d) or (e)— the master is guilty of an offence and liable to a penalty not exceeding 60 penalty units. (5) If— (a) as a result of the reportable incident a person is injured; and (b) the master of the vessel does not comply with subsection (2)— the master is guilty of an offence and liable to a penalty not exceeding 60 penalty units. s. 93 -- 112 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 94 (6) If no person is killed or suffers injury as a result of the reportable incident and the master of the vessel does not comply with subsection (2), the master of the vessel is guilty of an offence and liable to a penalty not exceeding 10 penalty units. (7) On conviction of a person for, or finding a person guilty of, an offence against this section, the court may cancel any marine licence or certificate of competency held by the person and, whether or not that person holds a marine licence or certificate of competency, disqualify him or her from obtaining a marine licence or certificate of competency for a period not exceeding 8 years. (8) The specifying by subsection (3) of fault elements for an offence against that subsection is not intended to affect the question of whether fault elements are required for any other offence against this section or any other provision of this Act. 94 Reporting of reportable incidents to Safety Director The owner or master of a commercially operated vessel that is involved in a reportable incident must report, in writing, the full particulars of the incident to the Safety Director as soon as possible after the incident occurs. Penalty: 10 penalty units. Division 5—Compliance with International Conventions Subdivision 1—Interpretation 95 Definitions In this Division— Australian fishing vessel has the same meaning as in section 6 of the Commonwealth Navigation Act; s. 94 -- 113 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 95 inland waterways vessel has the same meaning as in section 6 of the Commonwealth Navigation Act; inter-State voyage has the same meaning as in section 6 of the Commonwealth Navigation Act; overseas voyage has the same meaning as in section 6 of the Commonwealth Navigation Act; pleasure craft has the same meaning as in section 6 of the Commonwealth Navigation Act; Prevention of Collisions Convention has the same meaning as the Prevention of Collisions Convention has under section 187A(1) of the Commonwealth Navigation Act; Safety Convention has the same meaning as the Safety Convention has under section 187A(1) of the Commonwealth Navigation Act; sea includes any waters within the ebb and flow of the tide; trading ship has the same meaning as in section 6 of the Commonwealth Navigation Act. Subdivision 2—Prevention of Collisions Convention 96 Regulations giving effect to Prevention of Collisions Convention (1) The regulations may make provision for and in relation to giving effect to the Prevention of Collisions Convention in relation to commercial vessels while the commercial vessels are in State waters. s. 96 -- 114 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 96 (2) A person must not contravene a regulation made under subsection (1) that applies to that person. Penalty: 120 penalty units. (3) Section 9(1) and (2) do not apply in respect of this section. Subdivision 3—Safety Convention 97 Regulations giving effect to Safety Convention (1) The regulations may make provision for or in relation to a provision of Chapter V of the Regulations contained in the Annex to the Safety Convention (other than Regulation 13 or 15 of that Chapter of those Regulations) with respect to— (a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage; or (b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage; or (c) an inland waterways vessel; or (d) a pleasure craft; or (e) an off-shore industry vessel within the meaning of section 8 of the Commonwealth Navigation Act— (i) in respect of which there is not in force a declaration under section 8A(2) of that Act; and (ii) that is proceeding on a voyage other than an overseas voyage or an inter- State voyage. (2) If a provision of the Safety Convention applies only in relation to a particular class of vessel or in relation to vessels engaged on a particular class of s. 97 -- 115 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 97 voyage, any regulation under subsection (1) that gives effect to that provision may be applied to ships, vessels or craft of any other class mentioned in that subsection or to such ships, vessels or craft engaged in any other class of voyage other than an overseas voyage or, except in the case of an Australian fishing vessel, an inter-State voyage. Subdivision 4—General 98 Regulations under this Division (1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Division to be prescribed or necessary to be prescribed to give effect to this Division. (2) Without limiting subsection (1), regulations may be made for or with respect to prescribing penalties not exceeding— (a) if the offender is a natural person—a fine of 20 penalty units or imprisonment for 12 months, or both; or (b) if the offender is a body corporate—a fine of 60 penalty units— for a contravention of, or failure to comply with, a provision of the regulations or a notice, order, direction or instruction given, issued or made under, or in force by virtue of, the regulations. (3) Regulations made under this Division— (a) may apply, adopt or incorporate, with or without modification, the provisions of any Act or of any regulations made under any Act of, a State or the Commonwealth, as in force at a particular time or as in force from time to time; or s. 98 -- 116 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 98 (b) may apply, adopt or incorporate, with or without modification, any other instrument or writing made at the time the regulation is made or at any time before the regulation is made. (4) In subsection (3)(a), regulations includes orders made in pursuance of regulations made under the Commonwealth Navigation Act to which section 425(1AA) of that Act applies. 99 Authority of Governor in Council to make regulations in relation to powers under Conventions (1) This section applies if— (a) under this Division, the Governor in Council is empowered to make regulations for and in relation to giving effect to any of the provisions of the Safety Convention or the Prevention of Collisions Convention; and (b) the Safety Convention or the Prevention of Collisions Convention vests in the several Governments who are parties to those Conventions a power to exercise a discretion as to whether any, and if so what, action should be taken in respect of a provision of those Conventions (a Convention power). (2) The power to make regulations is to be construed as an authority conferred on the Governor in Council to make regulations for or with respect to a Convention power. Note See also section 191A of the Commonwealth Navigation Act. 100 Safety Director may allow other fitting, material etc. (1) This section applies if a regulation made under this Division for the purpose of giving effect to any provision of the Safety Convention or the Prevention of Collisions Convention requires a s. 99 -- 117 of 393 -- Part 3.5—Vessel Operational Requirements Marine Safety Act 2010 No. 65 of 2010 99 particular fitting, material, appliance or apparatus, or type of fitting, material, appliance or apparatus, to be fitted or carried in a vessel. (2) Despite the regulation, the Safety Director, if satisfied that another fitting, material, appliance or apparatus, or type of fitting, material, appliance or apparatus or other provision is at least as effective as that required by the relevant Convention, may allow— (a) any other fitting, material, appliance or apparatus, or type of fitting, material, appliance or apparatus to be fitted or carried in a vessel; or (b) any other provision to be made in a vessel. _________________ s. 100 -- 118 of 393 -- Part 3.6—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 100 PART 3.6—MISCELLANEOUS MATTERS 101 Person not to be found guilty as owner and master in respect of same circumstances A person must not be found guilty under a section in this Chapter as both a master and an owner in respect of the same circumstances. 102 Offence to supply vessel which does not comply with Australian Builders Plate Standard (1) A person must not in trade or commerce supply a recreational vessel of a prescribed class that does not comply with the Australian Builders Plate Standard that applies (with or without modification by the regulations) to a vessel of that kind. Penalty: In the case of a natural person, 240 penalty units; In the case of a body corporate, 600 penalty units. (2) In this section— trade or commerce includes any business or professional activity whether or not carried on for profit. __________________ s. 101 -- 119 of 393 -- Part 4.1—Interpretation Marine Safety Act 2010 No. 65 of 2010 101 CHAPTER 4—ENFORCEMENT PART 4.1—INTERPRETATION 103 Definitions (1) In this Chapter— appeal period, in relation to a conviction or an impoundment or immobilisation order or a forfeiture order, means the period ending— (a) if the period provided for the lodging of an appeal against the conviction or order has ended without such an appeal having been lodged, at the end of that period; or (b) if an appeal against the conviction or order has been lodged, when the appeal is abandoned or finally determined; authorised person means a person authorised by a member of the police force under section 109; conviction, in relation to a relevant offence, includes a finding of guilt of the relevant offence without the recording of a conviction; designated costs means the cost of impounding or immobilising a recreational vessel under Part 4.2 including, where relevant, the cost of— (a) moving the recreational vessel to a holding yard or place where the recreational vessel is to be immobilised; and s. 103 -- 120 of 393 -- Part 4.1—Interpretation Marine Safety Act 2010 No. 65 of 2010 102 (b) storing the recreational vessel at the holding yard or place where the recreational vessel is immobilised; and (c) releasing the recreational vessel from the holding yard or from immobilisation— and includes any additional costs incurred if the recreational vessel is impounded or immobilised for longer than the designated period or the period specified under an impoundment or immobilisation order; designated period, in relation to a recreational vessel, means the period of 48 hours beginning with the seizure or surrender of the recreational vessel under section 106 or 107, but if the period expires outside of normal business hours, the period extends to 9.00 a.m. on the next business day, being a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993; disposal order means an order made by a court under section 150; embargo notice means a notice under section 154; forfeiture order means an order made by a court under section 119; holding yard means a place used for the storage of recreational vessels impounded under Part 4.2; impoundment or immobilisation order means an order made by a court under section 118; landing place includes the following— (a) an intersection between land and water at which it is reasonably safe to land a vessel; s. 103 -- 121 of 393 -- Part 4.1—Interpretation Marine Safety Act 2010 No. 65 of 2010 103 (b) a place intended for the landing or berthing of vessels, including, but not limited to, a wharf, boat ramp, marina, pier or jetty; member of police personnel has the same meaning as in the Police Regulation Act 1958; prohibition direction means a direction to a person under section 155; public place includes, but is not limited to— (a) any public place within the meaning of public place in the Summary Offences Act 1966; (b) State waters; relevant court, in relation to an application made under Part 4.2, means— (a) the court with jurisdiction to hear and determine the relevant offence to which the application relates; (b) if an application is made after the sentencing of the master for a relevant offence, the Magistrates' Court; relevant offence means an offence against section 87; safe landing place means a landing place at which it is safe to immobilise the relevant vessel for the balance of the designated period, taking into account the weather conditions and facilities available during the designated period; search and seizure warrant means a warrant issued under section 135(1); s. 103 -- 122 of 393 -- Part 4.1—Interpretation Marine Safety Act 2010 No. 65 of 2010 104 senior police officer means a member of the police force of or above the rank of Inspector. (2) For the purposes of an application for an impoundment or immobilisation order or a forfeiture order under Part 4.2, charges for more than one relevant offence arising out of the same single set of circumstances are to be treated as a charge for one relevant offence. (3) For the purposes of subsection (2), a single set of circumstances is constituted by one continuous period during which a person continues to operate or be the master of a recreational vessel. __________________ s. 103 -- 123 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 105 PART 4.2—IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS Division 1—Part does not affect other penalties 104 Part does not affect other penalties The impoundment, immobilisation or forfeiture of a vessel under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part. Division 2—Impoundment and immobilisation of recreational vessels 105 Powers of police (1) If a member of the police force believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may— (a) seize the recreational vessel or require it to be surrendered; (b) impound the recreational vessel for the designated period; (c) immobilise the recreational vessel for the designated period; (d) authorise any person under section 109 to assist in seizing, impounding or immobilising the recreational vessel. (2) If a member of the police force has exercised a power to seize, impound or immobilise a recreational vessel under this Part in relation to a particular relevant offence and the recreational vessel has since been released— s. 104 -- 124 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 106 (a) the power to seize, impound or immobilise that recreational vessel under this Part for that particular relevant offence may not be exercised again; and (b) an embargo notice must not be issued in respect of the recreational vessel for that particular relevant offence; and (c) a prohibition direction must not be issued to the master of the vessel at the time of the particular relevant offence in respect of that offence. 106 Seizure of recreational vessel (1) For the purposes of impounding or immobilising a recreational vessel under this Part, a member of the police force may seize the recreational vessel— (a) from a public place; or (b) from a place that is not a public place with the consent of the owner or occupier of that place; or (c) from a place that is not a public place with a search and seizure warrant. (2) The period within which a recreational vessel may be seized under subsection (1) is— (a) in the case of a seizure from a public place or a place that is not a public place with the consent of the owner or occupier of that place— (i) 48 hours after the alleged commission of the relevant offence; or (ii) if a notice is served under section 107(1), 10 days after the expiry of the period specified in that notice; or s.106 -- 125 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 107 (b) in the case of a seizure from a place that is not a public place under a search and seizure warrant, the period specified in that warrant. (3) In order to seize a recreational vessel under subsection (1), a member of the police force may— (a) board or enter the recreational vessel using reasonable force if necessary; (b) operate or move the recreational vessel by any reasonable means, including, but not limited to, by trailer, motor vehicle or vessel; (c) if, after having taken reasonable steps to obtain the keys, the keys are not available, cause any locking device or other feature of the recreational vessel that is impeding the seizure of the recreational vessel to be removed, dismantled or neutralised; (d) seize, operate or move a trailer, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the master, owner or registered person. 107 Surrender of recreational vessel (1) If a member of the police force believes on reasonable grounds that a recreational vessel has been used in the commission of a relevant offence, he or she may serve a notice on the registered person or owner of the recreational vessel requiring the surrender of the recreational vessel. (2) A notice served under subsection (1) must— (a) be served within 10 days of the member of the police force forming the belief that the recreational vessel has been used in the commission of a relevant offence; and s. 107 -- 126 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 108 (b) specify a period within which the recreational vessel must be surrendered which must not commence less than 7 days after the notice is served. (3) Service of a notice under subsection (1) may be effected— (a) by serving it personally on the owner or registered person of the recreational vessel or, if that person is a company, on a director, secretary or other officer of the company; or (b) by posting it, addressed to the person, to the registered address or the residential address of the owner or registered person of the recreational vessel. (4) A notice under subsection (1) must include— (a) a statement by a member of the police force that the recreational vessel is liable to impoundment or immobilisation because that member believes on reasonable grounds that the recreational vessel was used in the commission of a relevant offence; and (b) a statement of the nature of the relevant offence and the date and time when the relevant offence is alleged to have been committed; and (c) the name of the master of the recreational vessel who is alleged to have committed the relevant offence; and (d) the date, time and place at which the recreational vessel is required to be surrendered to a member of police personnel; and (e) a statement that if the recreational vessel is not surrendered at the date, time and place specified in the notice a member of the s. 107 -- 127 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 109 police force may seize the recreational vessel in accordance with section 106; and (f) the prescribed particulars (if any). (5) An owner or registered person served with a notice under subsection (1) must comply with the notice, unless the owner or registered person has a reasonable excuse. Penalty: 60 penalty units. (6) If the recreational vessel is not surrendered to a member of police personnel at the date, time and place specified in a notice served under subsection (1), a member of the police force may, within 10 days after the period specified in the notice expires, exercise any power under section 105 or 106 to seize the recreational vessel. 108 Impoundment or immobilisation of a recreational vessel If a recreational vessel is seized or surrendered in accordance with this Part, a member of the police force may do any one or more of the following— (a) move, or cause to be moved, the recreational vessel to a holding yard by any reasonable means and impound it there for the balance of the designated period; (b) move, or cause to be moved, a trailer, motor vehicle or other thing by which the recreational vessel is transported by the master, owner or registered person or on which the recreational vessel is resting to a holding yard and impound it there for the balance of the designated period; (c) cause the recreational vessel to be immobilised at a safe landing place or on land or on anything on land (including, but s. 108 -- 128 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 110 not limited to, a trailer) for the balance of the designated period; (d) cause a trailer or other thing on which the recreational vessel is resting to be immobilised for the balance of the designated period; (e) do anything else reasonably necessary to impound or immobilise the recreational vessel. 109 Authorised persons In exercising powers under section 106, 108 or 130, a member of the police force may authorise any person to assist him or her to— (a) board or enter a recreational vessel, using reasonable force if necessary; (b) if the recreational vessel is on water— (i) operate or move a recreational vessel by any reasonable means including, but not limited to, by towing the vessel; (ii) move the recreational vessel on land or onto a trailer, motor vehicle or other thing on land; (c) if the recreational vessel is on land or on any thing that is on land, move by any reasonable means including, but not limited to, by means of a trailer or towing vehicle— (i) the recreational vessel; or (ii) a trailer, motor vehicle or other thing by which the recreational vessel is transported by the master, owner or registered person or on which the recreational vessel is resting— in order to move the recreational vessel to a holding yard; s. 109 -- 129 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 111 (d) cause any locking device or other feature of the recreational vessel that is impeding the exercise of powers under this Part to be removed, dismantled or neutralised; (e) operate or move a trailer, vessel, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the master, owner or registered person; (f) cause a recreational vessel to be immobilised at a safe landing place or on land by any reasonable means including, but not limited to, by immobilising a trailer or other thing on which the recreational vessel is resting; (g) store a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, in a holding yard; (h) release a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, when authorised by a member of the police force to do so. 110 Notice to master, owner or registered person (1) As soon as is reasonably practicable after a recreational vessel is impounded or immobilised under section 108, a member of the police force must serve written notice of the impoundment or immobilisation on— (a) the master of the recreational vessel; and (b) the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and s. 110 -- 130 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 112 (c) the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b). (2) A person who— (a) is an owner or registered person of a recreational vessel in relation to which a notice under subsection (1) has been served; and (b) does not have an interest or the sole interest in that recreational vessel— must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel. Note See section 152 for how a notice may be served. 111 Content of notice A notice under section 110 must be in a form approved by the Chief Commissioner of Police and must state— (a) the master's name; and (b) the identification mark of the recreational vessel; and (c) the engine number and the length, breadth and colour of the recreational vessel; and (d) the date and time when the recreational vessel was impounded or immobilised; and (e) the date of the relevant offence in respect of which the recreational vessel has been impounded or immobilised; and (f) the date and time when the recreational vessel is eligible for release; and s. 111 -- 131 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 113 (g) the process by which the impounded or immobilised recreational vessel may be released, including— (i) the location of the recreational vessel; and (ii) the designated costs payable; and (iii) if relevant, the contact details of the person who can release an immobilised recreational vessel; and (iv) that satisfactory evidence of the entitlement of a person seeking to have the recreational vessel released may be required before the recreational vessel will be released; and (h) that if a charge-sheet is filed containing a charge for a relevant offence and the master has committed one or more previous relevant offences, the Chief Commissioner of Police may, under section 120, apply to the relevant court for an impoundment or immobilisation order under section 118 or a forfeiture order under section 119; and (i) if applicable, that a trailer, motor vehicle or other things has been impounded or immobilised under section 108 for the purposes of impounding or immobilising the recreational vessel; and (j) any other prescribed particulars. 112 Review by a senior police officer (1) A member of the police force who impounds or immobilises a recreational vessel under section 108, or who authorises another person to do so, must, as soon as is practicable and in any event within 48 hours after the recreational vessel is impounded or immobilised, notify a senior s. 112 -- 132 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 114 police officer of the grounds on which he or she relied in forming the belief that the recreational vessel was used in the commission of a relevant offence. (2) A senior police officer who is notified in accordance with subsection (1) must make inquiries into the circumstances of the impoundment or immobilisation and if, after making those inquiries, he or she is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel, must ensure that the recreational vessel is released and returned to the owner or registered person as soon as is practicable. 113 Release of recreational vessel by Victoria Police (1) A recreational vessel impounded or immobilised under section 108 must be released to the owner, registered person or any other person entitled to possession as soon as is practicable if— (a) a member of the police force is satisfied that, at the time the relevant offence was committed, the recreational vessel used in the commission of the relevant offence was stolen; or (b) under section 112 a senior police officer is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel; or (c) a senior police officer considers it reasonable or necessary to release the recreational vessel; or (d) the Magistrates' Court has made an order under section 114(3). (2) If a recreational vessel is released in accordance with subsection (1)(a) or (b) the Crown is liable to pay the designated costs. s. 113 -- 133 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 115 (3) A senior police officer may, at his or her discretion, waive the designated costs if a recreational vessel is released in accordance with subsection (1)(c). (4) If— (a) a recreational vessel is released without any designated costs payable by a person seeking the release of the recreational vessel in accordance with this section; and (b) the master is subsequently found guilty of the relevant offence for which the recreational vessel was impounded or immobilised— the Chief Commissioner of Police may apply to the relevant court for an order that the master pay to the Chief Commissioner of Police the designated costs. 114 Appeal rights (1) If a recreational vessel is impounded or immobilised under section 108, a person whose interests are substantially affected by the impoundment or immobilisation may apply to the Magistrates' Court for an order that the recreational vessel be released on the ground that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person. (2) An application under subsection (1) may be made at any time while the recreational vessel remains impounded or immobilised, including when the impoundment or immobilisation continues for longer than the designated period as a result of non-payment of the designated costs. (3) On an application made under subsection (1), the Magistrates' Court may make an order that a recreational vessel impounded or immobilised s. 114 -- 134 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 116 under this Part be released to a specified person if the Court is satisfied that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person. (4) If the Magistrates' Court makes an order under subsection (3), it may order that the applicant is not liable to pay all or part of the designated costs. 115 Offences (1) A person must not, except in accordance with this Part or section 267 or 268, move an impounded or immobilised recreational vessel or tamper with any equipment used to immobilise a recreational vessel. Penalty: 60 penalty units. (2) It is not an offence under subsection (1) to move an impounded or immobilised recreational vessel or tamper with any equipment used to immobilise a recreational vessel— (a) if the impounded or immobilised recreational vessel is obstructing access to any property and it is necessary to move the recreational vessel to protect any person or property from a risk of imminent harm; or (b) to protect the recreational vessel from a risk of imminent harm; or (c) to comply with a direction made under this Act by a harbour master, the Safety Director, a member of the police force or a transport safety officer. (3) A person must not obstruct or hinder a member of the police force in the valid exercise of a power under this Part. Penalty: 60 penalty units. s. 115 -- 135 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 117 116 Recovery of recreational vessel (1) A recreational vessel impounded or immobilised under section 108 must be released to the owner, registered person or any other person entitled to possession of it— (a) subject to the provisions of this Part, on the expiration of the designated period; and (b) on the payment of the designated costs; and (c) on provision of satisfactory evidence, as prescribed, of that person's identity and his or her entitlement to recover the recreational vessel; and (d) subject to satisfactory compliance with the prescribed particulars (if any). (2) If no decision or order to release the recreational vessel has been made under section 113 or 114, a member of the police force or an authorised person may— (a) retain possession of an impounded recreational vessel; or (b) continue to immobilise a recreational vessel— in accordance with this Part until the designated costs are paid, even if the period during which the recreational vessel is impounded or immobilised is longer than the designated period. 117 Crown to pay costs if master found not guilty or charges not proceeded with If— (a) the master of a recreational vessel is subsequently found not guilty of the relevant offence in respect of which the recreational vessel was impounded or immobilised; or s. 116 -- 136 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 118 (b) no charge-sheet is filed containing a charge for a relevant offence or such a charge-sheet is filed but not proceeded with within 12 months after the recreational vessel was impounded or immobilised— then— (c) the Crown is liable to refund any designated costs paid by any person; or (d) the recreational vessel, if not already recovered by the owner, registered person or any other person entitled to possession of it, must be immediately released without any designated costs payable by the person seeking recovery of the recreational vessel. Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order 118 Impoundment or immobilisation order (1) On the application of the Chief Commissioner of Police under section 120(1), if a master is found guilty of a relevant offence, the relevant court may order that the recreational vessel used in the commission of the relevant offence be impounded or immobilised for a period of up to 3 months. (2) An order under subsection (1) must not be made unless the relevant court is satisfied— (a) that the master has been found guilty of one other relevant offence committed in the period of 3 years before the commission of the relevant offence; and s. 118 -- 137 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 119 (b) that at the time the relevant offence was committed the recreational vessel was not— (i) a stolen recreational vessel; or (ii) being used in any prescribed circumstances. (3) An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel. (4) The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1). Penalty: 60 penalty units. 119 Forfeiture order (1) On the application of the Chief Commissioner of Police under section 120(1), if a master is found guilty of a relevant offence the relevant court may order that the recreational vessel used in the commission of the relevant offence be forfeited to the Crown. (2) An order under subsection (1) may only be made if the relevant court is satisfied— (a) that the accused has been found guilty of 2 or more other relevant offences committed in the period of 3 years before the commission of the relevant offence; and (b) that at the time the relevant offence was committed the recreational vessel was not— (i) a stolen recreational vessel; or (ii) being used in any prescribed circumstances. s. 119 -- 138 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 120 (3) An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel. (4) The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1). Penalty: 60 penalty units. 120 Application for an impoundment or immobilisation order or a forfeiture order (1) The Chief Commissioner of Police may make an application for an impoundment or immobilisation order or a forfeiture order to the relevant court if the Chief Commissioner believes on reasonable grounds that— (a) the recreational vessel— (i) was used in the commission of the relevant offence; and (ii) at the time the relevant offence was committed, was not stolen or used in prescribed circumstances; and (b) the master has been found guilty of another relevant offence or other relevant offences (as the case requires) committed within the period of 3 years before the commission of the relevant offence. (2) An application under subsection (1) may be made at any time after a charge-sheet is filed charging a relevant offence, but may not be made later than 28 days after the master is sentenced for that relevant offence. s. 120 -- 139 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 121 121 Notice of application (1) If the Chief Commissioner of Police intends to make an application under section 120(1), he or she must, at least 28 days before making the application, serve notice of the intended application on— (a) the master of the recreational vessel in respect of which an application is to be made; and (b) the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and (c) the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b); and (d) any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel; and (e) the Safety Director. Note See section 152 for how a notice may be served. (2) A person who— (a) is notified under subsection (1)(a), (b) or (c); and (b) does not have an interest or the sole interest in the recreational vessel in relation to which the application in the notice is to be made— must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel. (3) A notice under subsection (1) must specify the recreational vessel in respect of which an order is to be sought. s. 121 -- 140 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 122 (4) A notice served under subsection (1) must state— (a) that if the master is found guilty of a relevant offence, an application for an impoundment or immobilisation order or a forfeiture order will be made by the Chief Commissioner of Police in respect of the recreational vessel specified in the notice; and (b) the identification mark of the recreational vessel; and (c) that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the relevant recreational vessel without the approval of the relevant court. 122 Interest in recreational vessel not to be transferred (1) A person on whom a notice is served under section 121(1) must not, before the application referred to in the notice is made and determined, or if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, without the approval of the relevant court, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice. Penalty: 60 penalty units. (2) Subsection (1) ceases to apply if— (a) the master is found not guilty of the relevant offence for which the application is made; or (b) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the master is sentenced for a relevant offence; or s. 122 -- 141 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 123 (c) the charge for that relevant offence is withdrawn. 123 Notice in case of 2 or more charges (1) If a master has been charged with 2 or more relevant offences, the Chief Commissioner of Police may, before the charges are heard or determined, serve a notice on— (a) the master of the recreational vessel; and (b) the registered person of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a); and (c) the owner of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a) or (b); and (d) any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel in respect of which an order is to be sought; and (e) the Safety Director. (2) A person who— (a) is notified under subsection (1)(a), (b) or (c); and (b) does not have an interest or the sole interest in the recreational vessel in relation to which the application in the notice is to be made— must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel. s. 123 -- 142 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 124 (3) A notice under subsection (1) must— (a) specify the recreational vessel in respect of which an order is to be sought; and (b) state that the Chief Commissioner of Police intends to make an application under section 120 for an impoundment or immobilisation order or a forfeiture order in relation to the recreational vessel if the master is convicted of more than one of the relevant offences in respect of which the master has been charged; and (c) state that a person named in the notice may, if the Chief Commissioner makes the application, appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) state that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the recreational vessel without the approval of the relevant court. (4) A person on whom a notice is served under subsection (1) must not, before the application referred to in the notice is made or determined or, if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, without the approval of the relevant court, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice. Penalty: 60 penalty units. (5) Subsection (4) ceases to apply if— (a) the master is found not guilty of one or more relevant offences which results in the master being subject to only one remaining charge for a relevant offence; or s. 123 -- 143 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 125 (b) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the master is sentenced for the second or third relevant offence; or (c) the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the master being subject to only one remaining charge for a relevant offence. 124 Direction not to transfer registration or register recreational vessel (1) Within 7 days after service of a notice under section 121(1) or 123(1), the Chief Commissioner of Police must direct the Safety Director— (a) not to transfer the registration of the recreational vessel that is the subject of the notice from the registered person to another person; or (b) not to register (other than by way of renewal) the recreational vessel that is the subject of the notice, unless the recreational vessel is to be registered in the name of the person who was the most recent registered person of that vessel— until the Chief Commissioner notifies the Safety Director that the direction has ceased in accordance with subsection (3). (2) Subsection (1) applies whether or not an actual application for transfer of registration or registration has been made. (3) The Chief Commissioner of Police must notify the Safety Director that the direction not to transfer registration or register under subsection (1) has ceased when any of the following occurs— s. 124 -- 144 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 126 (a) if a notice is served under section 121(1)— (i) the master is found not guilty of the relevant offence for which the application specified in the notice is made; (ii) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the master is sentenced for a relevant offence; (iii) the charge for the relevant offence specified in the notice is withdrawn and no other charge-sheet is filed charging for any other relevant offence arising out of the same single set of circumstances; (b) if a notice of is served under section 123(1)— (i) the master is found not guilty of one or more relevant offences which results in the master being subject to only one remaining charge for a relevant offence; (ii) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the master is sentenced for the second or third relevant offence; (iii) the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the master being subject to only one remaining charge for a relevant offence; s. 124 -- 145 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 127 (c) the court hearing the application declines to make an impoundment or immobilisation order or a forfeiture order; (d) the court sets aside an impoundment or immobilisation order or a forfeiture order under section 128; (e) an impoundment or immobilisation order or a forfeiture order is quashed, set aside on appeal or, as a result of a conviction for a relevant offence being set aside on appeal, the order ceases to have effect; (f) the period of impoundment or immobilisation specified in an impoundment or immobilisation order ends; (g) a forfeiture order becomes effective and a member of the police force or an authorised person takes possession of the recreational vessel that is the subject of the forfeiture order. Note Section 129 sets out when an order takes effect. 125 Safety Director not to transfer registration or register recreational vessel (1) If directed by the Chief Commissioner of Police under section 124, and until notified by the Chief Commissioner under that section that the direction has ceased, the Safety Director must not— (a) transfer the registration of the recreational vessel that is the subject of a notice under section 121(1) or 123(1) from the registered person to another person; or (b) register (other than by way of renewal) the recreational vessel that is the subject of a notice served under section 121(1) or 123(1), unless the recreational vessel is to be s. 125 -- 146 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 128 registered in the name of the person who was the most recent registered person of that recreational vessel. (2) If the Chief Commissioner of Police gives a direction under section 124(1) in respect of a recreational vessel, the Safety Director must send to the registered person a notice advising that no transfer of registration will occur in relation to that recreational vessel until the Chief Commissioner gives notification under section 124(3). 126 Cessation of direction under this Act does not affect any suspension The cessation of a direction not to transfer the registration of, or register, a recreational vessel under this Part does not affect the suspension of that registration under this Act or any other Act or law. 127 Hearing of application (1) The relevant court hearing an application for an impoundment or immobilisation order or a forfeiture order— (a) must allow any person served with a notice under section 121(1) or 123(1) to be heard at the hearing of the application and to show cause why an impoundment or immobilisation order or a forfeiture order should not be made; and (b) may allow any other person to be heard if the court is satisfied that an impoundment or immobilisation order or a forfeiture order may substantially affect that person's interests. (2) The court must not make an impoundment or immobilisation order or a forfeiture order if the owner or registered person of the recreational s. 126 -- 147 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 129 vessel that was used in the commission of the relevant offence can prove to the court's satisfaction that the relevant offence was committed without the knowledge or consent of the owner or registered person. (3) The court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person. (4) If the court makes an impoundment or immobilisation order, the Chief Commissioner of Police must notify the master and the owner or registered person that if the recreational vessel is not collected or released within 2 months after the date that the recreational vessel first became available for collection or release, the Chief Commissioner of Police may sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel. Note Section 144 provides that the Chief Commissioner of Police must give 14 days notice of any intention to sell or dispose of a recreational vessel or item or thing left in or on the recreational vessel. 128 Application for variation of order (1) A person whose interests are substantially affected by an impoundment or immobilisation order or a forfeiture order may apply to the court that made the order for variation of the order if the applicant can demonstrate— (a) that since the impoundment or immobilisation order or forfeiture order was made the applicant's circumstances have changed; and s. 128 -- 148 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 130 (b) that the impoundment or immobilisation order or forfeiture order is causing, or will cause, exceptional hardship to the applicant or any other person. (2) An application under subsection (1) to vary an impoundment or immobilisation order may be made at any time while the recreational vessel is impounded or immobilised. (3) An application under subsection (1) to vary a forfeiture order may be made at any time while the recreational vessel is vested in the Crown. (4) The court may make an order varying an impoundment or immobilisation order or a forfeiture order in any way, including, but not limited to— (a) setting aside the impoundment or immobilisation order or forfeiture order; or (b) reducing the amount of time that the recreational vessel is subject to impoundment or immobilisation. 129 When order takes effect (1) An impoundment or immobilisation order or a forfeiture order becomes effective on— (a) the expiration of the appeal period for the master's conviction of the relevant offence; or (b) the expiration of the appeal period for a sentencing order or sentence made following that conviction— whichever is the later. (2) If a conviction for a relevant offence is set aside on appeal, an impoundment or immobilisation order or a forfeiture order is of no effect. s. 129 -- 149 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 131 (3) If a person convicted of a relevant offence applied for leave to appeal against the conviction for the relevant offence or the making of an impoundment or immobilisation order or a forfeiture order after the end of the relevant appeal period and such leave is granted, the appeal operates as a stay of the impoundment or immobilisation order or forfeiture order and any recreational vessel impounded or immobilised or otherwise in possession of the Crown must be released to the owner or registered person. (4) If a recreational vessel subject to a forfeiture order is no longer in the possession of the Crown and the conviction for the relevant offence, or the forfeiture order, is set aside on appeal, the Crown must pay to the appellant and any other person with an interest in the recreational vessel an amount commensurate with the value of the appellant's or other person's interest in the recreational vessel. (5) Any amount to be paid under subsection (4) is to be paid out of the proceeds (if any) of the sale of the recreational vessel. (6) A person with an interest in the recreational vessel may make an application to the Magistrates' Court for an order that compensation be paid in accordance with subsection (4) and the Court may make either or both of the following orders— (a) an order that compensation be paid to that person commensurate with the value of the person's interest in the recreational vessel; (b) an order that the costs incurred by the Crown in executing the forfeiture order may be retained by the Crown out of the proceeds of the sale of the recreational vessel. s. 129 -- 150 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 132 130 Police powers A member of the police force acting under an impoundment or immobilisation order or a forfeiture order made under this Part has, and may exercise the same powers to seize the recreational vessel and impound or immobilise it as are specified in sections 106(1) and (3) and 108. 131 Liability for costs of impoundment or immobilisation If a court makes an impoundment or immobilisation order, the recreational vessel must not be released from impoundment or immobilisation until the designated costs are paid by the person seeking to collect or release the recreational vessel. 132 Ownership rights If a person is not the registered person of a recreational vessel, but can prove ownership of the recreational vessel to a court exercising powers under this Part, that person may make any application or exercise any right that a registered person may make or exercise under this Part. 133 Third party protection from forfeiture order (1) A person, other than the master, who did not appear at the hearing of an application for a forfeiture order and has an interest in the recreational vessel subject to a forfeiture order may apply to the court that made the forfeiture order for an order that— (a) if ownership of the recreational vessel is vested in the Crown— (i) ownership of the recreational vessel be transferred to the applicant, if the applicant had, immediately before the s. 130 -- 151 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 133 forfeiture order was made, full ownership of the recreational vessel; or (ii) if the applicant had part ownership of the recreational vessel immediately before the forfeiture order was made, the recreational vessel be sold and the Crown pay to the applicant and any other person with an interest in the recreational vessel an amount commensurate with the value of his or her interest in the recreational vessel; or (b) if the recreational vessel has been sold or otherwise disposed of, the Crown pay to the applicant an amount commensurate with the value of the applicant's interest in the recreational vessel. (2) Leave of the court that made the forfeiture order is required to bring an application under subsection (1) if— (a) the person was served with a notice of the application for a forfeiture order under section 121(1) or 123(1); or (b) six months or more have elapsed since the date the forfeiture order was made. (3) The court may only grant leave under subsection (2)(b) if it is satisfied that the delay in making the application was not due to the applicant's neglect. (4) On an application under subsection (1), the court may make an order— (a) declaring the nature, extent and, if necessary for the order, the value (at the time the declaration is made) of the applicant's interest in the recreational vessel immediately before the forfeiture order was made; and s. 133 -- 152 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 134 (b) directing the Crown— (i) if the recreational vessel is vested in the Crown and the applicant had full ownership of the recreational vessel immediately before the forfeiture order was made, to transfer ownership of the recreational vessel to the applicant; or (ii) if the recreational vessel is no longer vested in the Crown, or if the applicant did not have full ownership of the recreational vessel immediately before the forfeiture order was made, to pay to the applicant the value of the applicant's interest in the recreational vessel. (5) The court may only make an order under subsection (4) if it is satisfied that— (a) the applicant would have, apart from the forfeiture order, a relevant interest in the recreational vessel; and (b) the relevant offence occurred without the knowledge or consent of the applicant. (6) Any amount to be paid under this section is to be paid out of the proceeds (if any) of the sale of the recreational vessel. Division 4—Search and seizure warrants 134 Application for search and seizure warrant (1) A member of the police force may apply to a magistrate for a search and seizure warrant to be issued under this Division in respect of a recreational vessel if— (a) the recreational vessel is subject to an impoundment or immobilisation order and has not been surrendered to a member of the police force; or s. 134 -- 153 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 135 (b) the recreational vessel is subject to a forfeiture order and has not been surrendered to a member of the police force; or (c) in accordance with section 105, a member of the police force believes on reasonable grounds that the recreational vessel has been used in the commission of a relevant offence and the application is made within 48 hours after the alleged commission of the relevant offence; or (d) a member of the police force is empowered under section 107(6) to seize the recreational vessel. (2) An application under this section may only be made if the applicant believes on reasonable grounds that the recreational vessel is, or may be within the next 72 hours, in or at a specified premises or place, including, but not limited to, a landing place. (3) An application for a search and seizure warrant must be made in writing. (4) A magistrate must not issue a search and seizure warrant unless— (a) the application for the warrant sets out the grounds on which the warrant is sought; and (b) the applicant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds on which the warrant is sought; and (c) the information given by the applicant is verified before the magistrate on oath or affirmation or by affidavit. s. 134 -- 154 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 136 135 Search and seizure warrant (1) A magistrate to whom an application is made under section 134, if satisfied that there are reasonable grounds for believing the matters set out in the application, may issue a warrant to the person or persons named in the warrant to enter the specified premises or place and search for and seize the recreational vessel specified in the warrant. (2) A warrant issued under subsection (1) may authorise the person or persons named in the warrant to— (a) enter the premises or place specified in the warrant; and (b) search for the recreational vessel specified in the warrant; and (c) use reasonable force to break into or open any structure on or at the premises or place specified in the warrant that may store the recreational vessel specified in the warrant; and (d) seize and impound or immobilise the recreational vessel specified in the warrant, using any or all of the powers specified in sections 106(3) and 108. (3) A warrant issued under subsection (1) must— (a) state the purpose for which the warrant is issued; and (b) give a description of the recreational vessel authorised for seizure; and (c) give the address or other description of the premises or place in respect of which the warrant is issued. s. 135 -- 155 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 137 (4) Every warrant issued under this section must be in the prescribed form. 136 Record of proceedings for search and seizure warrant (1) A magistrate who issues a search and seizure warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant. (2) The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person. 137 Announcement before entry On executing a search and seizure warrant, the person executing the warrant must— (a) announce that he or she is authorised by the warrant to enter the premises or place; and (b) give any person at the premises or place an opportunity to allow entry to the premises or place before force is used to enter the premises or place. 138 Copy of search and seizure warrant to be given to occupier A person executing a search and seizure warrant must— (a) if the occupier is present at the premises or place where the warrant is being executed, identify himself or herself to the occupier and give the occupier a copy of the warrant; or (b) if the occupier is not present at the premises or place where the warrant is being executed, identify himself or herself to any other s. 136 -- 156 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 138 person at the premises or place and give that person a copy of the warrant. 139 Use of assistants to execute search and seizure warrant A person executing a search and seizure warrant may do so with the aid of any assistants that the person considers reasonably necessary to achieve the purpose for which the warrant was issued. 140 Application of Magistrates' Court Act 1989 Except to the extent that a contrary intention appears in this Division, the provisions to be observed with respect to search warrants in the Magistrates' Court Act 1989 extend and apply to search and seizure warrants under this Division. 141 Expiry of search and seizure warrant (1) A search and seizure warrant ceases to have effect if it is recalled and cancelled by the magistrate who issued it. (2) If subsection (1) does not apply, a search and seizure warrant ceases to have effect— (a) at the end of the period of one month after its issue; or (b) when it is executed— whichever occurs first. 142 Report on execution of search and seizure warrant (1) The person to whom a search and seizure warrant is issued must give a report to the registrar of the Magistrates' Court— (a) stating whether or not the warrant was executed; and (b) if the warrant was executed, setting out briefly the result of the execution of the warrant; and s. 139 -- 157 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 139 (c) if the warrant was not executed, setting out briefly the reasons why the warrant was not executed; and (d) stating whether or not a copy of the warrant was given to the occupier or another person at the premises or place. (2) A report must be— (a) in the prescribed form; and (b) made within 10 days after the expiry of the warrant. (3) A person may apply to the Magistrates' Court for an order authorising the person to inspect the report given under subsection (1) if the person satisfies the Court that the person is— (a) the owner or occupier of premises or a place on which the warrant was executed; or (b) a person who has an interest in the recreational vessel seized in the execution of the warrant. 143 Obstruction or hindrance of person executing search and seizure warrant A person must not, without reasonable excuse, obstruct or hinder a person executing a search and seizure warrant. Penalty: 60 penalty units. Division 5—Disposal of recreational vessels 144 Sale or disposal of uncollected recreational vessels and items (1) Subject to subsection (2), the Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel and any s. 143 -- 158 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 140 item or thing left in or on the recreational vessel, if— (a) a decision is made by a member of the police force to impound or immobilise a recreational vessel under section 105 or an impoundment or immobilisation order is made against that recreational vessel; and (b) the recreational vessel is not collected or released 2 months or more after the date on which the recreational vessel first became available for collection or release. (2) The Chief Commissioner of Police must not sell or otherwise dispose of a recreational vessel or an item or thing left in or on a recreational vessel under subsection (1) unless— (a) the matters referred to in subsection (3) are satisfied; or (b) a disposal order has been made for the recreational vessel. (3) For the purposes of subsection (2)(a), the matters that must be satisfied before the Chief Commissioner may sell or otherwise dispose of the recreational vessel or item or thing are— (a) all proceedings in relation to the relevant offence that led to the impoundment or immobilisation of the recreational vessel have been finalised and any appeal period has expired; and (b) at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner serves notice on the master, owner or registered person of the recreational vessel that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel, item or thing unless steps are taken to s. 144 -- 159 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 141 collect or release the recreational vessel, item or thing; and (c) at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner, by publishing a notice in a newspaper circulating generally in the State, notifies the public that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel; and (d) if the Chief Commissioner intends to sell or otherwise dispose of an item or thing left in or on the recreational vessel, all reasonable efforts have been made to return the item or thing to the person who has the ownership in that item or thing. 145 Sale or disposal of recreational vessel subject to forfeiture order (1) The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel that is the subject of a forfeiture order, and any uncollected item or thing left in or on the recreational vessel, once the forfeiture order takes effect in accordance with section 129(1). (2) The Chief Commissioner of Police must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a forfeiture order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing. s. 145 -- 160 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 142 146 Application of proceeds of sale Where a recreational vessel or item or thing is sold under section 144 or 145 the proceeds of sale are to be applied in the following order of priority— (a) to pay the costs of the sale; (b) to pay any costs of impoundment or immobilisation; (c) to discharge any security interest over the recreational vessel, such as a bank loan or a lease arrangement; (d) to pay the owner or registered person of the recreational vessel if the recreational vessel was uncollected, or if the owner or registered person cannot be reasonably located, for payment into the Consolidated Fund; (e) for payment into the Consolidated Fund. 147 Disposal of recreational vessel, item or thing subject to disposal order (1) The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel that is the subject of a disposal order and any item or thing left in or on the recreational vessel. (2) The Chief Commissioner must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a disposal order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing. s. 146 -- 161 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 143 148 Notice to be given of intention to apply for disposal order (1) The Chief Commissioner of Police may give notice of an application in accordance with this section for a disposal order for a recreational vessel if— (a) a decision is made by a member of the police force to impound or immobilise the recreational vessel under section 105 or an impoundment or immobilisation order is made against the recreational vessel; and (b) the relevant court adjourns proceedings in relation to a relevant offence, other than to a fixed date, because the accused fails to appear; and (c) a warrant is issued for the arrest of the accused; and (d) the recreational vessel has not been collected, and the designated costs are not paid, within 2 months after the day the proceedings are adjourned. (2) At least 28 days before making an application under section 149 the Chief Commissioner of Police must— (a) serve notice of the intention to make the application on— (i) the master of the recreational vessel; and (ii) if the master of the recreational vessel is not the registered person of the recreational vessel, the registered person; and (iii) if the owner of the recreational vessel is not a person referred to in subparagraph (i) or (ii), the owner; and s. 148 -- 162 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 144 (iv) any person who the Chief Commissioner is aware has an interest in the recreational vessel; and (v) the Safety Director; and (b) publish a notice in a newspaper circulating generally in the State, of the Chief Commissioner's intention to make the application. (3) A notice under subsection (2) must state— (a) that the Chief Commissioner intends to apply for an order to dispose of the recreational vessel unless the recreational vessel is collected and the designated costs paid within 28 days after the date of the notice is served; and (b) information that identifies the recreational vessel, including the recreational vessel's identification mark (if applicable); and (c) that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) any person on whom notice is served must not sell or otherwise dispose of the person's interest in the recreational vessel without the approval of the relevant court. 149 Application for disposal order The Chief Commissioner of Police may apply to the court for an order to dispose of a recreational vessel if— (a) the Chief Commissioner has served notice in respect of the recreational vessel in accordance with section 148(2)(a); and s. 149 -- 163 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 145 (b) within 28 days after the date notice is served, the recreational vessel is not collected or the designated costs have not been paid. 150 Hearing of application for and making of disposal order (1) The relevant court hearing an application for a disposal order— (a) must allow a person served with a notice under section 148 to be heard at the hearing of the application and to show cause why the disposal order should not be made; and (b) may allow any other person to be heard if the court is satisfied the disposal order may substantially affect the person's interests. (2) After hearing the application, the court may— (a) make the disposal order; or (b) decline to make the disposal order if the court is satisfied the order would cause exceptional hardship to a person. (3) If the court makes the disposal order, the Crown becomes the owner of the recreational vessel. 151 Application of proceeds of sale (1) If a recreational vessel, item or thing is sold under a disposal order, the proceeds of the sale are to be applied in the following order of priority— (a) to pay the costs of the disposal; (b) to pay any costs of impoundment or immobilisation; (c) to discharge any security interest over the recreational vessel, including a bank loan or lease arrangement. s. 150 -- 164 of 393 -- Part 4.2—Impoundment, Immobilisation and Forfeiture of Recreational Vessels Marine Safety Act 2010 No. 65 of 2010 146 (2) Any sum remaining after the proceeds of the sale are applied in accordance with subsection (1) is taken to be unclaimed money under the Unclaimed Money Act 2008 as if it were a sum of money legally payable to the person who had ownership of the recreational vessel immediately before the disposal order was made and as if the sum has remained unpaid for more than 12 months. Division 6—Miscellaneous 152 Service of notices under this Part If under this Part a notice is required or permitted to be served on any person, the notice may, unless the contrary intention appears, be served— (a) by delivering it personally to the person; or (b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of 16 years and apparently residing at that place or (in the case of a business) apparently in charge of or employed at that place; or (c) by sending it by post addressed to the person at the usual or last known place of residence or business of that person; or (d) if the person has given to the Safety Director as his or her address an address that is not his or her place of residence or business, by sending it addressed to the person at that address. __________________ s. 152 -- 165 of 393 -- Part 4.3—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels Marine Safety Act 2010 No. 65 of 2010 147 PART 4.3—PROHIBITION OF USE OF RECREATIONAL VESSELS AND HIRE AND DRIVE VESSELS Division 1—Part does not affect other penalties 153 Part does not affect other penalties The issue of an embargo notice under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part. Division 2—Embargo notices and prohibition directions 154 Power to issue embargo notices (1) If a member of the police force or a transport safety officer believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may, as soon as practicable after the commission of the relevant offence, issue a notice in the form approved by the Safety Director specifying a period not exceeding 48 hours during which the recreational vessel may not be operated by any person. (2) A notice under subsection (1) may be served— (a) by causing a copy of the notice to be affixed to the recreational vessel in a prominent position; or (b) by causing a copy of the notice to be given to— (i) the master of the recreational vessel; and s. 153 -- 166 of 393 -- Part 4.3—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels Marine Safety Act 2010 No. 65 of 2010 148 (ii) the registered person of the recreational vessel, if he or she is not the person referred to in subparagraph (i); and (iii) the owner of the recreational vessel, if he or she is not the person referred to in subparagraph (i) or (ii). (3) A notice under subsection (1) must specify— (a) the period during which the recreational vessel may not be operated; and (b) that it is an offence to operate or permit the operation of, a recreational vessel in breach of a notice issued under subsection (1); and (c) if a copy of the notice has been affixed to the recreational vessel, where and how the notice can be removed from the recreational vessel; and (d) any other prescribed matter. (4) A person must not operate, or permit the operation of, a recreational vessel in contravention of a notice issued under subsection (1) in respect of that recreational vessel. Penalty: 10 penalty units. (5) It is a defence to a charge under subsection (4) for the person charged to prove that— (a) he or she did not know; and (b) it was not reasonable for him or her to know— that a notice under subsection (1) was issued in respect of the recreational vessel. (6) A person must not remove a copy of a notice affixed to a recreational vessel under this section. Penalty: 10 penalty units. s. 154 -- 167 of 393 -- Part 4.3—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels Marine Safety Act 2010 No. 65 of 2010 149 (7) Subsection (6) does not apply to a member of the police force or a transport safety officer who is acting in the course of his or her duties. (8) If a member of the police force or a transport safety officer has issued and served a notice under subsection (1) in respect of a vessel for a particular relevant offence— (a) the power to issue a notice under subsection (1) in respect of that vessel for that particular relevant offence must not be exercised again; and (b) a prohibition direction must not be issued to the master of the vessel at the time of the particular relevant offence in respect of that offence; and (c) the vessel must not be seized, impounded or immobilised under Part 4.2 for that particular relevant offence. 155 Police power to prohibit operation of vessels (1) If a member of the police force or a transport safety officer believes on reasonable grounds that a recreational vessel or a hire and drive vessel is being or has been used in the commission of a relevant offence, he or she may— (a) direct the master of the vessel at the time the relevant offence was committed not to operate any vessel for a specified period not exceeding 24 hours beginning at the time of the direction; (b) direct the master of the vessel at the time the relevant offence was committed to move the vessel to the landing place that is nearest to the vessel at the time when the direction is made. s. 155 -- 168 of 393 -- Part 4.3—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels Marine Safety Act 2010 No. 65 of 2010 150 (2) A person must not contravene the direction of a member of the police force or a transport safety officer under subsection (1)(a). Penalty: 10 penalty units. (3) A person must not fail to comply with the direction of a member of the police force or a transport safety officer under subsection (1)(b). Penalty: 5 penalty units. (4) If a member of the police force or a transport safety officer has given a direction under subsection (1) to a person who was the master of a vessel at the time of a particular relevant offence— (a) the power to give a direction under subsection (1) to that person for that particular relevant offence may not be exercised again; and (b) an embargo notice must not be issued for that particular offence; and (c) a vessel must not be seized, impounded or immobilised under Part 4.2 for that particular relevant offence. __________________ s. 155 -- 169 of 393 -- Part 4.4—Marine Infringements Marine Safety Act 2010 No. 65 of 2010 151 PART 4.4—MARINE INFRINGEMENTS 156 Infringement notices (1) A member of the police force or a transport safety officer who has reasonable cause to believe that a person has committed a marine infringement of a kind that is prescribed for the purposes of this Part may serve on that person an infringement notice. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) For the purposes of subsection (1), an infringement notice— (a) must be in the form required by section 13 of the Infringements Act 2006; and (b) may contain any additional prescribed details. (4) The infringement penalty for the purposes of this section in respect of any marine infringement is the amount prescribed in respect of that marine infringement. 157 Person may be required to state name and address (1) A member of the police force or a transport safety officer who has reason to believe that a person has committed a marine infringement may require that person to state his or her name and address. (2) A person must not refuse or fail to state his or her name and address when required to do so under subsection (1). Penalty: 5 penalty units. s. 156 -- 170 of 393 -- Part 4.4—Marine Infringements Marine Safety Act 2010 No. 65 of 2010 152 (3) A person must not state a false name or address when required to state his or her address under subsection (1). Penalty: 5 penalty units. 158 Payment of penalty Despite section 32(3) of the Infringements Act 2006, if the infringement notice was served by a staff member of a Council within the meaning of the Local Government Act 1989, the infringement penalty paid under Part 2 of the Infringements Act 2006 must be paid into the municipal fund of that Council. __________________ s. 158 -- 171 of 393 -- Part 4.5—General Enforcement Powers Marine Safety Act 2010 No. 65 of 2010 153 PART 4.5—GENERAL ENFORCEMENT POWERS 159 Powers of entry in relation to lights (1) If a notice served under item 25 of Schedule 1 is not complied with, a person authorised by the Safety Director for the purposes of this section may do all or any of the following— (a) enter any premises and take possession of the light; (b) order that the light be forfeited; (c) do anything in relation to the light that the notice required the owner or other person to do. (2) A person on whom a notice under item 25 of Schedule 1 is served must comply with the notice. Penalty: 60 penalty units. 160 Arrest without warrant (1) A member of the police force may arrest without warrant any person who— (a) within sight of the member of the police force, commits an offence against this Act or the regulations; and (b) on being requested to give his or her name and address— (i) refuses or fails to give his or name and address; or (ii) gives a name or address that the member of the police force reasonably suspects to be false. (2) If a person who is arrested for an offence under this Act or the regulations was in charge of a vessel, any member of the police force may take s. 159 -- 172 of 393 -- Part 4.5—General Enforcement Powers Marine Safety Act 2010 No. 65 of 2010 154 charge of the vessel and may move it to an appropriate place and keep or leave it there— (a) pending the admission of the arrested person to bail; or (b) if the arrested person is not the owner of the vessel, pending a demand for the vessel by its owner. 161 Police power to move vessel or require vessel to be moved (1) This section applies if a master of a vessel has, within sight of a member of the police force, committed an offence against— (a) Part 3.2; or (b) Part 4 of the Marine (Drug, Alcohol and Pollution Control) Act 1988. (2) The member of the police force may— (a) take charge of the vessel and move it to an appropriate place; or (b) direct another person to move the vessel to an appropriate place. 162 Master of a vessel must obey directions etc. The master of a vessel on State waters must obey any direction that is given, by any means, by a member of the police force or a transport safety officer. Penalty: 60 penalty units. __________________ s. 161 -- 173 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 155 PART 4.6—DISCIPLINARY ACTION Division 1—Interpretation 163 Definitions In this Part— disciplinary notice means a notice served by the Safety Director under section 167; permission does not include registration of a vessel; permission record means the written document recording the kind of permission a person holds under this Act. Division 2—Disciplinary action by Safety Director 164 When Safety Director must take disciplinary action against a person holding a permission The Safety Director must take disciplinary action against a person who holds a permission if the Safety Director is satisfied that— (a) the person has been convicted in another State or a Territory or another country of an offence which, if the person had been the holder of a permission or other authority in that State, Territory or country, would have enabled the relevant authority in that State, Territory or country to suspend or cancel the person's permission or other authority; or (b) the person is disqualified from being the master of, or operating, a vessel in another State or a Territory or another country or the person's permission in that State, Territory or country has been cancelled because of a judgment, order or decision made under, or s. 163 -- 174 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 156 otherwise by operation of, the law of that State, Territory or country. 165 When Safety Director may take disciplinary action against person holding a permission (1) The Safety Director may take disciplinary action against a person who holds a permission if the Safety Director is satisfied that— (a) the person has contravened a provision of a relevant marine safety law; or (b) the person has failed to comply with standards under the Uniform Shipping Laws Code or the National Standard for Commercial Vessels which apply to the kind of permission held by the person; or (c) the person has failed to comply with any condition, restriction or other limitation imposed on the person under or by the permission; or (d) the person has acted incompetently in operating a vessel; or (e) the person has refused to undergo, or has failed, any test the Safety Director has required the person to undergo under this Act; or (f) it would be dangerous for the person to operate a vessel because of illness or bodily infirmity, defect or incapacity or because of the effects of treatment for any of those things; or (g) the permission was obtained by false statement or any misrepresentation or other dishonest means; or (h) a cheque submitted to the Safety Director as payment of a fee for a permission under the regulations has been dishonoured. s. 165 -- 175 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 157 (2) The Safety Director, when deciding whether to take disciplinary action against a person who holds a permission, may consider the following— (a) the nature of the contravention or failure; (b) if there is more than one contravention or failure, the number of contraventions or failures; (c) whether the person has contravened or failed to comply as specified in subsection (1) on previous occasions; (d) any other matter the Safety Director thinks is relevant. (3) The Safety Director may take disciplinary action against a person in respect of whom a court order has been made if— (a) the order requires the person to pay a sum of money by way of a fine, penalty, costs or restitution; and (b) the order was made in respect of an offence arising out of the use of a vessel in Victoria, including a marine infringement; and (c) the Safety Director has been notified by a person authorised by law to issue or to execute a warrant for the enforcement of the court order, that the order is wholly or partially unsatisfied. 166 Disciplinary actions that may be taken by Safety Director against a person holding a permission (1) The Safety Director may take one or more of the following disciplinary actions against a person who holds a permission— (a) cancel the permission and disqualify the person from applying for a permission of that kind— s. 166 -- 176 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 158 (i) for a period not exceeding 5 years; or (ii) until a condition imposed by the Safety Director is met; (b) suspend the permission— (i) for any period; or (ii) until a condition imposed by the Safety Director is met; (c) if the permission is already suspended, do either of the following— (i) cancel the permission and disqualify the person from applying for a permission of that kind— (A) for a period not exceeding 5 years; or (B) until a condition imposed by the Safety Director is met; or (ii) suspend the permission— (A) for an additional period; or (B) until a condition imposed by the Safety Director is met; (d) direct the person to take particular training; (e) impose a new condition, restriction or other limitation on, or vary a condition, restriction or other limitation on, the permission; (f) reprimand the person. (2) If a person holds more than one kind of permission, the Safety Director may take action in relation to any one or more of the permissions. s. 166 -- 177 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 159 167 Procedure for taking disciplinary action against a person holding a permission (1) If the Safety Director proposes to take disciplinary action under section 165 against a person who holds a permission, the Safety Director must serve on that person a disciplinary notice that— (a) states the proposed action (including any proposed period of suspension or disqualification from applying for a permission of a particular kind); and (b) if the person holds more than one kind of permission—states the specific permission or permissions to which the proposed action relates; and (c) states the grounds for the proposed action; and (d) invites the person to make a written submission within a stated period as to why the proposed action should not be taken. (2) For the purposes of subsection (1)(d), the period stated in the disciplinary notice must be— (a) if an immediate suspension notice is also served under section 168, a period of at least 14 days after the day on which the disciplinary notice is served on the person; (b) in any other case, a period of at least 28 days after the day on which the disciplinary notice is served on the person. (3) In deciding whether to take disciplinary action, the Safety Director must consider any response given to the Safety Director in accordance with subsection (1)(d). s. 167 -- 178 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 160 (4) If the Safety Director is satisfied that grounds for taking disciplinary action against a person who holds a permission have been established, the Safety Director may— (a) take any disciplinary action of which notice was given in the disciplinary notice or any disciplinary action that is of lesser severity than that of which notice was given in the disciplinary notice; and (b) in any case— (i) direct the person to undertake particular training; or (ii) reprimand the person. (5) The Safety Director must, as soon as practicable, serve written notice on the person who holds a permission of the decision with respect to taking, or not taking, disciplinary action and, if the decision is to take disciplinary action, of— (a) the disciplinary action being taken; and (b) the date, which must not be earlier than 7 days after the day on which the notice under this subsection is served, on which any cancellation, suspension, disqualification or new or amended condition, limitation or other restriction takes effect. 168 Suspension of permission (1) This section applies if the Safety Director— (a) has decided to serve, or has served, a disciplinary notice on a person who holds a permission; and (b) believes, on reasonable grounds, that it is in the public interest that the permission held by the person be suspended as soon as practicable before a decision is made to take s. 168 -- 179 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 161 action under section 167(4) in relation to the person. (2) In forming the belief referred to in subsection (1)(b), the Safety Director must consider— (a) the circumstances leading to the decision to serve the disciplinary notice; and (b) the grounds stated, or proposed to be stated, in the disciplinary notice. (3) The Safety Director may serve on the person a notice (an immediate suspension notice) suspending the permission. (4) If an immediate suspension notice is served on the person, the permission is suspended on that service. (5) A suspension in relation to a permission ends— (a) if the permission is cancelled or suspended under section 167(4)—when the cancellation or suspension takes effect; or (b) if a condition, restriction or other limitation is imposed on the permission, or a condition, restriction or other limitation on the permission is varied—when the condition, restriction or other limitation or varied condition, restriction or other limitation, takes effect; or (c) in any other case—when the person is notified under section 167(5) of the decision made on the disciplinary notice. 169 Effect of suspension of permission (1) This section applies if the Safety Director suspends a person's permission. s. 169 -- 180 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 162 (2) During the period of suspension, the person is taken not to hold a permission of that kind and to be disqualified from applying for a permission of that kind. 170 Return of permission record (1) A person whose permission has been cancelled or suspended under this Part must, not later than 7 days after the cancellation or suspension takes effect— (a) return the relevant permission record to the Safety Director; or (b) if the permission record has been lost, stolen or destroyed, give the Safety Director a statement, verified by a statutory declaration signed by or on behalf of the person, that the permission record has been lost, stolen or destroyed. Penalty: 10 penalty units. (2) If a permission held by a person is suspended and it has not expired when the suspension ends, the Safety Director must return the permission record to the person. Division 3—Court based sanctions 171 Power of court to cancel or suspend marine licences (1) Subject to subsection (2), a court may suspend or cancel a marine licence held by a person and, whether or not that person holds a marine licence, disqualify that person from obtaining a marine licence for the period specified by the court (if any) or as otherwise provided under this section, if that person is guilty of an offence against a relevant marine safety law. s. 170 -- 181 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 163 (2) On conviction for an offence against section 318(1), 319(1) or 319(1A) of the Crimes Act 1958 in connection with the operating of a vessel, the court must— (a) in the case of an offender who holds a marine licence, cancel that licence and disqualify the offender from obtaining a marine licence for the period of time (not being less than 6 months) that the court thinks fit; or (b) in the case of an offender who does not hold a marine licence, disqualify the offender from obtaining a marine licence for the period of time (not being less than 6 months) that the court thinks fit. (3) Subsection (1) does not affect the obligation of a court to cancel a marine licence and disqualify the offender in any case in which cancellation and disqualification are mandatory under— (a) section 87; or (b) section 28A of the Marine (Drug, Alcohol and Pollution Control) Act 1988. (4) A court must cause particulars of an order made under subsection (1) or (2) to be sent immediately to the Safety Director. (5) If under subsection (1) or (2) a court disqualifies a person from obtaining a marine licence for any period of time without expressly cancelling any marine licence held by that person, the marine licence held by the person is, unless the order specifies otherwise, taken to have been cancelled by that order. s. 171 -- 182 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 164 (6) Subsection (1) does not apply to an offence under section 31A(6) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 unless the court is satisfied that the person convicted or found guilty of the offence was the master of or the person operating a vessel less than 3 hours before the time of the offence. (7) A marine licence cancelled by a court is of no effect and a person whose marine licence is cancelled is (without affecting the power of the court to impose a longer period) disqualified from obtaining a further marine licence for the period specified by the court or, if no period is specified, for 3 months. (8) In this section— vessel means— (a) a registered recreational vessel; or (b) a regulated hire and drive vessel. 172 Effect of suspension of licence A marine licence suspended by a court is, during the suspension, of no effect and a person whose marine licence is suspended is, during the suspension, disqualified from obtaining a further marine licence. 173 Adverse publicity order (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or Safety Director, make an order under this section. (2) The court may make an adverse publicity order requiring the offender to do all or any of the following— s. 172 -- 183 of 393 -- Part 4.6—Disciplinary Action Marine Safety Act 2010 No. 65 of 2010 165 (a) to take either or both of the following actions within the period specified in the order— (i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a specified person or specified class of person, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; (b) to give the Safety Director within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (3) The court may make an order under this section in addition to— (a) imposing a penalty on the offender; or (b) making any other order that the court may make in relation to the offence. (4) This section does not limit powers of the court under any other provision of this Act. __________________ s. 173 -- 184 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 166 PART 4.7—OWNER ONUS 174 Purpose of Part The purpose of this Part is to establish an "owner onus" system for certain offences arising out of the operation of vessels based on the principle that, if the identity of the master or person in charge is not established at the time the offence is detected, the owner should generally be liable for the offence unless that person can establish that they were not responsible for the vessel at the time of the offence and provide information sufficient to identify and locate who was. 175 Definitions In this Part— effective, in relation to an illegal user statement, a known user statement, a sold vessel statement or an unknown user statement, means a statement that is, or is accepted by an enforcement official under section 178 as, and has not ceased to be, an effective statement for the purposes of this Part; enforcement official means— (a) the informant in any proceeding commenced against the owner of a vessel; or (b) the issuing officer (within the meaning of the Infringements Act 2006) in relation to an infringement notice served on the owner of a vessel; or s. 174 -- 185 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 167 (c) the enforcement agency (within the meaning of the Infringements Act 2006) in relation to a penalty reminder notice served on the owner under Part 2 of that Act— in relation to being in charge of the vessel at the relevant time; illegal user statement, in relation to an offence involving a vessel, means a statement in writing made by a person to the effect that the person believes that at the time of the offence the vessel was a stolen vessel or the identification mark displayed on the vessel was false; known user statement, in relation to an offence involving a vessel, means a statement in writing made by a person— (a) to the effect that the person was not at the time of the offence the master of the vessel; and (b) containing sufficient information to identify and locate the person who the person making the statement knew to be the master of the vessel at the time of the offence; nomination rejection statement means a statement in writing made by a person nominated in a known user statement or a sold vessel statement as being the responsible person in relation to a vessel to the effect— (a) if nominated in a known user statement, that the person had not had possession or control of the vessel before the offence, as stated in the known user statement, and the person was not the s. 175 -- 186 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 168 master of the vessel at the time of the offence; and (b) if nominated in a sold vessel statement, that the vessel had not been sold or disposed of to the person, and that no interest in it had otherwise vested in the person, as stated in the sold vessel statement; owner, in relation to a vessel, includes a registered person; responsible person, in relation to a vessel, means each of the following— (a) the owner of the vessel; (b) the person nominated in an effective known user statement or an effective sold vessel statement; sold vessel statement, in relation to an offence involving a vessel, means a statement in writing made by a person— (a) to the effect that— (i) the person had sold or otherwise disposed of the vessel before the time of the offence or that any interest in the vessel had otherwise ceased to be vested in the person before that time; and (ii) the person was not at that time the master of the vessel, or had not at that time possession or control of, the vessel; and (b) containing sufficient information to identify and locate the person to whom the vessel was sold or disposed of, or in whom an interest in the vessel was otherwise vested, and the date and, if s. 175 -- 187 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 169 relevant, the time of the sale, disposal or vesting; unknown user statement, in relation to an offence involving a vessel, means a statement in writing made by a person to the effect that the person— (a) was not at the time of the offence the master of the vessel, or had not at that time possession or control of, the vessel; and (b) does not know and could not with reasonable diligence ascertain the identity of the person who was at that time the master of the vessel, or had at that time possession or control of, the vessel. 176 Owner onus offences (1) If this Act, the regulations or a legislative instrument that creates an offence that may be committed by the master of a vessel, or any other Act or legislative instrument, expressly states that the offence is an owner onus offence for the purposes of this Part, then (except as otherwise provided by the Part) the person who at the time of the offence is the responsible person in relation to the vessel is guilty of the offence as if that person were the master of the vessel at that time. (2) Nothing in subsection (1) affects the liability of the master of the vessel at the time of the offence. (3) The owner of a vessel only ceases to be the responsible person in relation to the vessel if another person is the responsible person in relation to that vessel by force of section 178 or 179. s. 176 -- 188 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 170 (4) A person who by force of this section is guilty of an offence is liable to the same penalties and subject to the consequences to which the person would have been liable and subject had the person been the master of the vessel at the time of the offence. 177 Effect of payment of penalty etc. If by force of section 176 more than one person may be guilty of an offence involving a vessel and the full amount of any monetary penalty is paid (and not refunded) and any other necessary consequence is suffered by any one of them in relation to the offence, no further penalty or consequence may be imposed on or recovered from that person or any other person in relation to the offence. 178 Use of effective statement to avoid liability (1) A person is not guilty of an offence by force of section 176 if— (a) within the prescribed period the person gives one of the following statements to an enforcement official— (i) an illegal user statement; (ii) a known user statement; (iii) a sold vessel statement; (iv) an unknown user statement; and (b) the statement is an effective statement for the purposes of this Part. Notes 1 A statement may cease to be an effective statement under section 179. 2 It is an offence to provide false or misleading information in a statement: see section 182. s. 177 -- 189 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 171 (2) Information contained in a known user statement or a sold vessel statement identifying a person is sufficient for the purposes of this Part if it contains— (a) in the case of an individual, his or her full name and current home address and either his or her date of birth or the number of the licence or certificate authorising him or her to be the master of a vessel and, if that licence or certificate is issued by a corresponding authority, the name of that authority; and (b) in the case of a person other than an individual, its full name and current address and (where applicable) its Australian Business Number or Australian Company Number; and (c) reasons for nominating the individual under paragraph (a) or person under paragraph (b); and (d) in any case, any other prescribed information. (3) A statement containing all the information required by subsection (2) is an effective statement for the purposes of this Part. (4) In addition, an enforcement official may decide to accept a known user statement or a sold vessel statement as an effective statement for the purposes of this Part even if it does not contain all the information required by subsection (2) if the enforcement official is satisfied that it contains sufficient information to identify and locate the nominated person. (5) An enforcement official may decide to accept an illegal user statement as an effective statement for the purposes of this Part if satisfied as to the s. 178 -- 190 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 172 matters, and any reasons set out in support of those matters, stated in the statement. (6) An enforcement official may decide to accept an unknown user statement as an effective statement if the enforcement official is satisfied that it states— (a) that, at the time of the offence, the person was not the master of the vessel, or had not at that time possession or control of the vessel; and (b) reasons in support of the matters raised under paragraph (a) that— (i) are adequate and reasonable in the circumstances; and (ii) explain why the person could not, with reasonable diligence, ascertain the identity of the person who was at that time the master of the vessel or at that time was last known to have had possession or control of the vessel. (7) An enforcement official to whom a known user statement or sold vessel statement (not containing all the information required by subsection (2)) or an illegal user statement or an unknown user statement is given under subsection (1) must, within the prescribed period, cause a notice to be served on the person who gave the statement stating whether or not the enforcement official has decided under subsection (4), (5) or (6) (as the case requires) to accept the statement as an effective statement for the purposes of this Part. (8) If subsection (7) is not complied with in respect of a statement, the enforcement official must be taken to have decided to accept the statement as an effective statement for the purposes of this Part. s. 178 -- 191 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 173 (9) A notice under subsection (7) may be served by post addressed to the person at an authorised address (within the meaning of section 163A of the Infringements Act 2006). (10) A notice under subsection (7) served in accordance with subsection (9) and returned undelivered to its sender is taken to be served 14 days after the date specified in the notice as the date of the notice, despite it being returned to its sender as undelivered. (11) Subsection (10) has effect despite anything to the contrary in section 308 or section 49(1) of the Interpretation of Legislation Act 1984. 179 Cancellation of acceptance of statement (1) An enforcement official may cancel the acceptance of a statement as an effective statement for the purposes of this Part (including a statement taken to have been accepted by force of section 178(8))— (a) if in the case of a known user statement or a sold vessel statement, the person nominated in the statement as being the responsible person gives to an enforcement official within the prescribed period a nomination rejection statement and the enforcement official is satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect; or Note It is an offence to provide false or misleading information in a statement: see section 182. (b) if in the case of a statement not containing all the information required by section 178(2), the information contained in the statement s. 179 -- 192 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 174 proves not to be sufficient to identify or locate the nominated person; or (c) in prescribed circumstances. (2) If the acceptance of a statement as an effective statement is cancelled under subsection (1), on that cancellation— (a) the statement ceases to be an effective statement for the purposes of this Part; and (b) the person who would, but for the statement, have continued to be the responsible person in relation to the vessel becomes again the responsible person. 180 Proceedings against nominated persons (1) A proceeding against a person nominated in an effective known user statement or sold vessel statement for an offence to which this Part applies may be commenced not later than 12 months after— (a) the day on which the statement was given to the enforcement official; or (b) if the statement again becomes an effective statement because of the cancellation under section 179(1) of the acceptance of a subsequent statement, the day on which the subsequent statement is cancelled. (2) In a proceeding referred to in subsection (1) the known user statement or sold vessel statement is evidence and, in the absence of evidence to the contrary, proof of the matters stated in it. (3) A proceeding against a person (other than a person nominated in an effective known user statement or sold vessel statement) who, by force of section 179(2), becomes again the responsible person in relation to the vessel at the time of the offence to which this Part applies may be s. 180 -- 193 of 393 -- Part 4.7—Owner Onus Marine Safety Act 2010 No. 65 of 2010 175 commenced not later than 12 months after the day on which that person again became the responsible person. 181 Defences to owner onus offences In a proceeding for an owner onus offence it is a defence to the charge for the accused to prove any of the following— (a) that the accused had made an illegal user statement, a known user statement, a sold vessel statement or unknown user statement within the prescribed period and that the statement is, or ought to have been accepted by an enforcement official as, an effective statement for the purposes of this Part; (b) that the acceptance as an effective statement for the purposes of this Part of an illegal user statement, known user statement, sold vessel statement or unknown user statement made by the accused ought not to have been cancelled under section 179(1); (c) if the proceeding against the accused is based on a nomination made in a known user statement or sold vessel statement, that the accused had made a nomination rejection statement and that an enforcement official ought to have been satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect. 182 Offence to provide false or misleading information A person must not in a statement given under section 178(1) or 179(1)(a) to an enforcement official provide information that the person knows to be false or misleading. Penalty: 60 penalty units. __________________ s. 181 -- 194 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 176 CHAPTER 5—MANAGEMENT OF WATERS PART 5.1—WATERWAY RULES Division 1—Interpretation 183 Definitions In this Part— mandatory considerations in relation to a proposed rule, means— (a) the safety risk, or the nature and level of a safety risk, that the proposed rule is intended to minimise or eliminate; (b) whether there are alternative ways (legislative or otherwise) to address the matter being or to be addressed by the proposed rule; (c) the expected benefits and costs of the proposed rule on those persons likely to be affected by the proposed rule, if made; non-material nature, in relation to a proposed rule, includes correction of a minor error in a rule; rule means a rule made under section 184; specified amendment rule means— (a) a rule that undoes the effect of an urgent safety rule in respect of which the Safety Director has decided under section 191 that— s. 183 -- 195 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 177 (i) the urgent safety rule was not the only means available to address the matter addressed by the rule; and (ii) there is a more appropriate, non- legislative way to address the matter addressed by the urgent safety rule; or (b) a rule that more appropriately addresses a matter addressed by an urgent safety rule in respect of which the Safety Director has decided under section 191 that— (i) a rule was the only means available to address the matter addressed by the urgent safety rule; but (ii) the urgent safety rule was not the most appropriate rule to be made to address that matter; urgent safety rule means a rule relating to any matter for or with respect to the operations of vessels on waters and the other users of those waters that, if not made as a matter of urgency, will result in that matter imminently prejudicing or threatening the safety of the operations or use. Division 2—The Safety Director's power to make waterway rules 184 Making of waterway rules (1) Subject to this Part, the Safety Director, by notice published in the Government Gazette, may make rules for or with respect to— s. 184 -- 196 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 178 (a) regulating or prohibiting the operation on State waters or any part of State waters of— (i) any vessels; or (ii) any specified classes of vessel; (b) regulating the use of State waters or any part of State waters by bathers and others, so far as that use affects any boating activity; (c) regulating the carriage of charts, appliances and other equipment on vessels for the purpose of safe navigation of the vessels, and the safety of life, on State waters or any part of State waters. (2) Waterway rules may— (a) be of general or limited application; (b) differ according to differences in time, place or circumstance; (c) apply, adopt or incorporate any matter contained in any document whether— (i) wholly or partially or as amended by the rules; or (ii) as in force at a particular time or as in force from time to time. 185 Safety Director may make a rule that is consequential to a rule request (1) The Safety Director may, having regard to a request to make a rule under section 194 make a rule that is necessary or consequential to the rule that is to be made on that request. (2) For the purposes of this Part, the Safety Director must treat a rule he or she may make under subsection (1) as if it were part of the rule to be made on that request. s. 185 -- 197 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 179 186 Waterway rules to be made on request or on initiative of Safety Director (1) The Safety Director may make a rule— (a) at the request of a port management body, local port manager, waterway manager or member of the police force under section 194; or (b) on the Safety Director's own initiative. (2) The Safety Director, on his or her own initiative, may make— (a) a rule in relation to the operation of vessels on, or use by persons of— (i) waters under the Safety Director's control; or (ii) unmanaged waterways; or (b) an urgent safety rule in relation to the operation of vessels on waters or use of waters under the control of a port management body, local port manager or waterway manager; or (c) a specified amendment rule. 187 Matters that must be considered in making a rule (1) In making a rule, the Safety Director must have regard to— (a) the mandatory considerations; and (b) if the rule is being made following a request from a port management body, local port manager or waterway manager, the summary of submissions or comments received by that body or manager under section 194; and s. 186 -- 198 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 180 (c) if the rule is being made by the Safety Director on the Director's own initiative or at the request of a member of the police force, any submissions or comments made to the Director under section 195 by the date specified in a notice under section 195(3)(a). (2) This section does not apply in the case of the making of— (a) an urgent safety rule; or (b) a specified amendment rule; or (c) a rule that is of a non-material nature. 188 Reasons must be given for making or not making a rule (1) The Safety Director must publish his or her decision whether to make a rule under section 184 on the Safety Director's Internet site. (2) A decision that is published under subsection (1) must contain a statement of the reasons of the Safety Director for making or not making the rule, including— (a) a description of the matter that was addressed by the request or proposal for the making of the rule; and (b) the Safety Director's conclusions after having regard to the mandatory considerations. (3) In the case of a decision relating to a request for the making of a rule, the Safety Director must also publish the request as part of his or her decision. s. 188 -- 199 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 181 189 Operation and commencement of a waterway rule A rule commences operation on— (a) the day the relevant notice is published in the Government Gazette; or (b) any day after that day that is provided for in the relevant notice or the rule. 190 Rules to be published on Safety Director's Internet site On publication of a notice under section 184, the Safety Director must, without delay, publish the rule on the Director's Internet site. 191 Safety Director must assess appropriateness of urgent safety rule (1) This section applies if the Safety Director makes an urgent safety rule. (2) As soon as reasonably practicable after making the urgent safety rule, the Safety Director must assess— (a) whether the making of the rule was the only means available to address the matter addressed by that rule; and (b) if so, whether that rule was the most appropriate rule to be made to address that matter. (3) In making a decision under subsection (2), the Safety Director must have regard to— (a) the mandatory considerations; and (b) submissions and comments that the Safety Director receives in accordance with section 192. s. 189 -- 200 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 182 (4) The Safety Director must publish his or her decision under subsection (2) on the Safety Director's Internet site and notice of the making of the decision must be published in the Government Gazette. (5) A decision that is published under subsection (4) must contain a statement of the reasons of the Safety Director including— (a) a description of the matter that was addressed by the making of the urgent safety rule; and (b) the Safety Director's conclusions after having regard to the mandatory considerations. (6) If the Safety Director decides that— (a) the urgent safety rule was not the only means available to address the matter addressed by the rule; and (b) there is a more appropriate, non-legislative way to address the matter— the Safety Director must, within 12 months after the making of the decision, make a rule that undoes the effect of the urgent safety rule. (7) If the Safety Director decides that— (a) a rule was the only means available to address the matter addressed by the urgent safety rule; but (b) the urgent safety rule was not the most appropriate rule to be made to address that matter— the Safety Director must, within 12 months after the making of the decision, make a rule that more appropriately addresses that matter. s. 191 -- 201 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 183 192 Consultation for the purpose of assessing appropriateness of urgent safety rule (1) For the purpose of making a decision under section 191, the Safety Director must invite submissions and comments from the public in accordance with this section. (2) The Safety Director must— (a) publish notice of the assessment of the urgent safety rule— (i) in a newspaper circulating generally throughout the State; and (ii) on the Safety Director's Internet site; and (b) make copies of the urgent safety rule available to the public on the Safety Director's Internet site and at a prescribed place during business hours free of charge. (3) A notice under subsection (2)(a) must— (a) include a summary of the urgent safety rule; and (b) specify the date by when a submission or comment must be made to the Safety Director; and (c) specify how a submission or comment must be made; and (d) specify that copies of the urgent safety rule are available on the Safety Director's Internet site and at the prescribed place during business hours free of charge. (4) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks. s. 192 -- 202 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 184 Division 3—Procedure in relation to request for making of waterway rules 193 Initial consideration and advice by Safety Director in relation to certain requests (1) Before making a request for the making of a rule under section 194, a port management body, local port manager or waterway manager must notify the Safety Director of the body's or manager's intention to make the request. (2) A notification under subsection (1)— (a) must be in writing; and (b) must contain the following information— (i) the name and address of the body or manager; and (ii) a description of the rule that the body or manager proposes be made; and (iii) a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and (c) may be accompanied by a draft of the proposed rule. (3) On receiving a notification under subsection (1), the Safety Director must— (a) consider whether the rule that is proposed to be requested— (i) appears to be within the powers conferred on the Safety Director to make the rule; and (ii) is of a material nature or a non-material nature; and s. 193 -- 203 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 185 (b) within 2 weeks after receiving a notification under subsection (1)— (i) advise, in writing, the port management body, local port manager or waterway manager of the matters under subsection (5), (6) or (7), as the case requires; and (ii) publish notice of the advice in the Government Gazette. (4) An advice under this section must set out the reasons of the Safety Director as to the matters under subsection (5), (6) or (7), as the case requires. (5) If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a material nature, the Safety Director must advise the port management body, local port manager or waterway manager— (a) of that view; and (b) that it must comply with section 196 before making a request for the making of the rule under section 194. (6) If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a non-material nature, the Safety Director must advise the port management body, local port manager or waterway manager— (a) of that view; and (b) that it is not required to comply with section 196 before making a request for the making of the rule under section 194. s. 193 -- 204 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 186 (7) If the Safety Director is of the view that the rule that is proposed to be requested does not appear to be within the powers conferred on the Safety Director to make the rule, the Safety Director must advise the port management body, local port manager or waterway manager of that view. 194 Requests for waterway rules (1) A port management body, local port manager or waterway manager or a member of the police force may request the Safety Director to make a waterway rule. (2) A request from a port management body, local port manager or waterway manager may only be in relation to the operation of vessels on waters or use by persons of waters under their respective control. (3) A request for the making of a rule— (a) must be in writing; and (b) must contain the following information— (i) the name and address of the body or manager making the request; and (ii) a description of the rule that the body or manager proposes be made; and (iii) a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and (iv) an explanation of how the proposed rule addresses the mandatory considerations; and s. 194 -- 205 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 187 (v) in the case where a port management body, local port manager or waterway manager has been advised of the matters under section 193(5)— (A) a list of submissions and comments received under section 196; and (B) a summary of the matters raised in the submissions and comments received under section 196; and (C) how the port management body, local port manager or waterway manager has taken into account the submissions and comments that address the mandatory considerations; and (c) must be accompanied by a draft of the proposed rule. 195 Consultation by Safety Director on proposed rules (1) This section applies if the Safety Director— (a) receives a request from a member of the police force to make a rule that the Safety Director considers is of a material nature; or (b) proposes to make a rule on his or her own initiative that the Safety Director considers is of a material nature. (2) Before making a rule, the Safety Director must invite submissions and comments from the public in accordance with this section. (3) The Safety Director must— (a) publish notice of the request or proposal to make a rule— (i) in a newspaper circulating generally throughout the State; and s. 195 -- 206 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 188 (ii) on the Safety Director's Internet site; and (b) make copies of the request or proposal available to the public on the Safety Director's Internet site and at a prescribed place during business hours free of charge. (4) A notice under subsection (3)(a) must— (a) include a summary of the request or proposal; and (b) specify the date by when a submission or comment must be made to the Safety Director; and (c) specify how a submission or comment must be made; and (d) specify that copies of the request or proposal are available on the Safety Director's Internet site and at the prescribed place during business hours free of charge. (5) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks. 196 Port management bodies, local port managers and waterway manager must consult before requesting rule (1) Subject to this Part, before requesting the making of a rule under this Part, a port management body, local port manager or waterway manager must invite submissions and comments in relation to the proposed request from the public in accordance with this section. Note As to when this section applies, see section 193(5). s. 196 -- 207 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 189 (2) The port management body, local port manager or waterway manager must— (a) publish notice of the proposal to request the making of a rule— (i) in a newspaper circulating generally throughout the State; and (ii) on the body's or manager's Internet site; and (b) make copies of the proposal available to the public on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge. (3) A notice under subsection (2)(a) must— (a) include a summary of the proposal; and (b) specify the date by when a submission or comment must be made to the port management body, local port manager or waterway manager; and (c) specify how a submission or comment must be made; and (d) specify that copies of the proposal are available on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge. (4) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks. (5) The port management body, local port manager or waterway manager must, in formulating its request for the making of a rule, take into account every submission or comment it receives by the s. 196 -- 208 of 393 -- Part 5.1—Waterway Rules Marine Safety Act 2010 No. 65 of 2010 190 date specified in the notice under subsection (2)(a). Division 4—Compliance with waterway rules 197 Offence not to comply with waterway rules A person must not operate a vessel or use any waters in contravention of a waterway rule. Penalty: 20 penalty units. 198 Offences of waterway rule contraventions relating to vessel operation are owner onus offences An offence for contravention of a waterway rule relating to the operation of a vessel is an owner onus offence for the purposes of Part 4.7. __________________ s. 197 -- 209 of 393 -- Part 5.2—Standards for Navigation Aids and Dredging Marine Safety Act 2010 No. 65 of 2010 191 PART 5.2—STANDARDS FOR NAVIGATION AIDS AND DREDGING 199 Determination of the standards for navigation aids and dredging and maintenance of channels (1) Subject to this Part, the Safety Director, by notice published in the Government Gazette, may determine standards for— (a) the provision and maintenance of navigation aids in State waters; (b) dredging and maintenance of channels in State waters. (2) A determination under subsection (1) must set out the reasons for the making of a determination. 200 Consultation required before making a determination Before the Safety Director makes a determination under section 199, the Safety Director must consult with every port management body, local port manager or waterway manager that the Director considers will need to comply with the determination. 201 Matters that must be considered in making a determination In making a determination under section 199, the Safety Director must have regard to— (a) the safety risk, or the nature and level of a safety risk, that the determination is intended to minimise or eliminate; (b) whether there are alternative ways (legislative or otherwise) to address the matter to be addressed by the determination; s. 199 -- 210 of 393 -- Part 5.2—Standards for Navigation Aids and Dredging Marine Safety Act 2010 No. 65 of 2010 192 (c) the expected benefits and costs of the determination on those persons likely to be affected by the determination, if made. 202 Offence to fail to comply with standard determined under this Part A port management body, local port manager or waterway manager must comply with a standard determined under section 199. Penalty: 120 penalty units. __________________ s. 202 -- 211 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 193 PART 5.3—BOATING ACTIVITY EXEMPTIONS AND EXCLUSION ZONES Division 1—Boating activity exemptions 203 Declarations to exempt boating activity on certain waters from Act or regulations (1) A person who proposes to conduct boating activity on State waters may apply to the applicable regulatory entity for— (a) an exemption from the application of this Act, the regulations, the waterway rules or regulations made under the Port Management Act 1995 to the proposed boating activity; (b) a modification of the application of this Act, the regulations, the waterway rules or regulations made under the Port Management Act 1995 to the proposed boating activity. (2) An application under subsection (1) must— (a) be in writing; and (b) describe the proposed boating activity; and (c) specify the period of time during which the proposed boating activity will be conducted; and (d) set out the reasons for the application; and (e) set out the provisions of this Act, the regulations, the waterway rules or regulations made under the Port Management Act 1995— s. 203 -- 212 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 194 (i) from which the proposed boating activity is proposed to be exempted; or (ii) to be modified; and (f) set out an assessment of risks associated with the proposed boating activity; and (g) set out the proposed risk controls to be implemented for the proposed boating activity; and (h) contain any other prescribed information; and (i) be accompanied by the prescribed fee. (3) On receiving an application under subsection (1), the applicable regulatory entity may, subject to section 204, make a declaration that provides for one or more of the following in respect of a provision of this Act, the regulations, the waterway rules or regulations made under the Port Management Act 1995— (a) that the provision does not apply to the boating activity described in the application, when conducted; (b) that the provision applies, with modifications, to the boating activity described in the application when conducted; (c) if the provision does not apply to the boating activity described in the application when conducted, that another requirement specified in the declaration applies to the boating activity. s. 203 -- 213 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 195 (4) A declaration under subsection (3) must— (a) be in writing; and (b) as the case requires, specify— (i) the provision that does not apply; (ii) the modifications; (iii) the other requirements. (5) A declaration under subsection (3) must— (a) describe the boating activity to which the declaration applies; and (b) specify the persons or classes of persons to whom the declaration will apply; and (c) specify the State waters on which the boating activity may be conducted; and (d) specify the time during which the declaration will apply. (6) A declaration under subsection (3) must be published— (a) in a newspaper circulating generally throughout the State; and (b) on the applicable regulatory entity's Internet site. (7) In this section applicable regulatory entity means— (a) the Safety Director; (b) if the waters on which the boating activity proposed to be conducted are under the control of a port management body, that body; (c) if the waters on which the boating activity proposed to be conducted are under the control of a local port manager, that manager; s. 203 -- 214 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 196 (d) if the waters on which the boating activity proposed to be conducted are under the control of a waterway manager, that waterway manager. 204 Safety Director to be given copy of declaration application and proposed declaration (1) As soon as practicable after receiving an application under section 203(1), a port management body, a local port manager or a waterway manager must give to the Safety Director— (a) a copy of the application; and (b) a draft of the declaration the body or manager proposes to make; and (c) if the body or manager proposes to also publish a notice under section 208(2) in relation to the boating activity proposed to be conducted under the declaration, a draft of that notice. (2) On receiving the documents under subsection (1), the Safety Director may, within the prescribed time, direct the port management body, local port manager or waterway manager— (a) not to make the declaration; or (b) to change any part of the draft declaration. (3) A direction under subsection (2) must be in writing. (4) A port management body, local port manager or waterway manager that is given a direction under subsection (2) must comply with the direction. (5) The Safety Director cannot give a direction under subsection (2) after the end of the prescribed time. s. 204 -- 215 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 197 205 Effect of a declaration A declaration under section 203 applies despite anything to the contrary in this Act, the regulations, the waterway rules, or the regulations made under the Port Management Act 1995. 206 Exemption from compliance with Act, regulations or Port Management Act 1995 A person to whom a declaration under 203 applies is exempted from complying with a provision of this Act, the regulations, the waterway rules, or the regulations made under the Port Management Act 1995 that the declaration provides does not apply to the person. 207 Compliance with declarations that modify or provide for other requirements to apply (1) If a declaration under section 203 modifies the application of a provision of this Act, the regulations, the waterway rules, or the regulations made under the Port Management Act 1995, a person to whom the declaration applies must comply with the provision as modified. Penalty: 60 penalty units. (2) If a declaration under section 203 provides for a requirement specified in the declaration to be complied with, a person to whom the declaration applies must comply with that requirement. Penalty: 60 penalty units. Division 2—Activity exclusion zones 208 Activity exclusion zones (1) The Safety Director, by notice published in the Government Gazette, may prohibit— (a) a person or class of person; s. 205 -- 216 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 198 (b) a vessel or class of vessel— from entering, or remaining in, a specified part of State waters for the period specified by the notice. (2) Subject to this section and section 209, a port management body, local port manager or waterway manager, by notice published in the Government Gazette, may prohibit— (a) a person or class of person; (b) a vessel or class of vessel— from entering, or remaining in, a specified part of waters under their control for the period specified by the notice. (3) The period specified by a notice under subsection (1) or (2) must not exceed the prescribed period of time (if any). (4) A notice may only be made under subsection (1) or (2) by the Safety Director, port management body, local port manager or waterway manager for the purpose of giving effect to a declaration under section 203. (5) A notice under subsection (1) or (2) must— (a) describe the part of the waters to which the notice applies; and (b) specify the person or class of person to whom, or vessel or class of vessel to which, the notice applies. 209 Safety Director to be given proposed notice creating activity exclusion zone (1) Before publishing a notice under section 208(2), a port management body, local port manager or waterway manager must give a draft of the notice to the Safety Director. s. 209 -- 217 of 393 -- Part 5.3—Boating Activity Exemptions and Exclusion Zones Marine Safety Act 2010 No. 65 of 2010 199 (2) On receiving a draft of a notice under subsection (1), the Safety Director may, within the prescribed time, direct the port management body, local port manager or waterway manager not to publish the notice if the Safety Director intends to give a direction to the body or manager under section 204(2) that relates to the same part of State waters. (3) A direction under subsection (2) must be in writing. (4) A port management body, local port manager or waterway manager that is given a direction under subsection (2) must comply with the direction. (5) The Safety Director cannot give a direction under subsection (2) after the end of the prescribed time. 210 Compliance with activity exclusion zones (1) A person to whom a notice under section 208(1) or (2) applies must not enter or remain in the waters to which that notice applies unless the person has a reasonable excuse. Penalty: 60 penalty units. (2) A master of a vessel to which a notice under section 208(1) or (2) applies must not allow the vessel to enter or remain in the waters to which that notice applies unless the person has a reasonable excuse. Penalty: 60 penalty units. __________________ s. 210 -- 218 of 393 -- Part 5.4—Regulation of Other Activities on Certain Waters Marine Safety Act 2010 No. 65 of 2010 200 PART 5.4—REGULATION OF OTHER ACTIVITIES ON CERTAIN WATERS 211 Control of navigation etc. in the vicinity of works carried out on, over or under waters (1) An applicable regulatory entity, may on the application of a person intending to carry out works on, over or under a part of State waters, do either or both of the following for the purpose of eliminating or reducing the risks to safety associated with the carrying out of those works— (a) give directions to masters of vessels in relation to the navigation and movement of those vessels in the vicinity where the works are being carried out; (b) may, subject to section 212, by notice published in the Government Gazette— (i) prohibit the navigation and other movement of vessels in the vicinity where the works are being carried out; (ii) regulate the position and the manner in which any vessel may anchor or be secured in the vicinity where the works are being carried out. (2) An application under subsection (1) must— (a) be in writing; and (b) describe the works to be carried out; and (c) specify the period of time during which the works are to be carried out; and (d) specify the waters on, over or under which the works are to be carried out; and (e) set out an assessment of risks associated with the works to be carried out; and s. 211 -- 219 of 393 -- Part 5.4—Regulation of Other Activities on Certain Waters Marine Safety Act 2010 No. 65 of 2010 201 (f) set out the proposed risk controls to be implemented for the works to be carried out, including how the person wishes the navigation of vessels in the vicinity of the works to be regulated or prohibited; and (g) contain any other prescribed information; and (h) be accompanied by the prescribed fee. (3) A notice under subsection (1)(b)(i) or (ii)— (a) may temporarily exclude a person or vessel from the part of State waters to which the notice relates; (b) must describe the part of State waters to which the notice applies. (4) In this section— applicable regulatory entity means— (a) the Safety Director; (b) if the waters on, over or under which the works are to be carried out are under the control of a port management body, that body; (c) if the waters on, over or under which the works are to be carried out are under the control of a local port manager, that manager; (d) if the waters on, over or under which the works are to be carried out are under the control of a waterway manager, that waterway manager; works includes— (a) the construction, maintenance or decommissioning of a facility or infrastructure; and s. 211 -- 220 of 393 -- Part 5.4—Regulation of Other Activities on Certain Waters Marine Safety Act 2010 No. 65 of 2010 202 (b) the dredging of a channel and related activities; and (c) the construction or maintenance or exterior alteration or decoration of a building or other structure; and (d) the demolition or removal of a building or other structure; and (e) the erection, maintenance and removal of signs or hoardings; and (f) the removal, destruction or lopping of vegetation. 212 Safety Director to be given proposed notice relating to regulation of waters around works (1) Before publishing a notice under section 211(1)(b), a port management body, local port manager or waterway manager must give a draft of the notice to the Safety Director. (2) On receiving a draft of a notice under subsection (1), the Safety Director may, within the prescribed time, direct the port management body, local port manager or waterway manager— (a) not to publish the notice; or (b) to change any part of the draft notice. (3) A direction under subsection (2) must be in writing. (4) A port management body, local port manager or waterway manager that is given a direction under subsection (2) must comply with the direction. (5) The Safety Director cannot give a direction under subsection (2) after the end of the prescribed time. s. 212 -- 221 of 393 -- Part 5.4—Regulation of Other Activities on Certain Waters Marine Safety Act 2010 No. 65 of 2010 203 213 Compliance with a direction of applicable regulatory entity A master of a vessel given a direction by an applicable regulatory entity under section 211(1)(a) must comply with that direction unless the master has a reasonable excuse. Penalty: 60 penalty units. 214 Compliance with notice A person must comply with a notice under section 211(1)(b)(i) or (ii) unless the person has a reasonable excuse. Penalty: 60 penalty units. 215 Emergency directions (1) This section applies if— (a) the Safety Director considers that, because of an emergency, persons must not enter or remain in a part of State waters; or (b) a port management body, local port manager or waterway manager considers that, because of an emergency, persons must not enter or remain in a part of waters under their control. (2) The Safety Director, port management body, local port manager or waterway manager may direct a person (orally or in writing) not to enter or remain in the waters. Note An oral direction may be given by a delegate of a port management body, local port manager or waterway manager who is a natural person. (3) The Safety Director, port management body, local port manager or waterway manager must, as soon as possible after giving an oral direction, make a written copy of the direction and keep a copy of s. 213 -- 222 of 393 -- Part 5.4—Regulation of Other Activities on Certain Waters Marine Safety Act 2010 No. 65 of 2010 204 that direction for a period of 6 years after the date of the direction. (4) A direction under subsection (2) must specify the waters to which the direction applies. (5) A person given a direction under subsection (2) must comply with the direction unless the person has a reasonable excuse. Penalty: 60 penalty units. __________________ s. 215 -- 223 of 393 -- Part 5.5—Waterway Management Marine Safety Act 2010 No. 65 of 2010 205 PART 5.5—WATERWAY MANAGEMENT 216 Functions and powers of waterway managers (1) A waterway manager has the following functions— (a) the management of vessel activities on the waters under the control of the waterway manager; (b) the management and allocation of moorings and berths in the waters under the control of the waterway manager; (c) the provision and maintenance, in accordance with standards developed by the Safety Director, of navigation aids, including appropriate signage as to water levels, hazards and laws applying to the waters under the control of the waterway manager; (d) the control of navigation and vessel movement in the waters under the control of the waterway manager; (e) the designation of areas in the waters under the control of the waterway manager in which anchorage of vessels is permitted and areas in which anchorage of vessels is not permitted; (f) the altering or dredging of channels for navigation in the waters under the control of the waterway manager, in accordance with any directions or determination of the Safety Director and as so required by the Safety Director; (g) the removal or marking of obstructions in the waters under the control of the waterway manager. s. 216 -- 224 of 393 -- Part 5.5—Waterway Management Marine Safety Act 2010 No. 65 of 2010 206 (2) A waterway manager must carry out its functions under subsection (1) in a manner that— (a) ensures the safe operation of vessels in the waters under the control of the waterway manager; and (b) minimises the risk of environmental damage from the operation of vessels in the waters under the control of the waterway manager. (3) A waterway manager has the following powers— (a) the power to enter into contracts and agreements for the carrying out of its functions under this section; (b) the power to employ persons or enter into contracts or agency agreements with persons to assist in the carrying out of its functions; (c) the power to charge the fees prescribed by the regulations for any service provided by the waterway manager; (d) the power to do all things necessary to enable its functions under this section to be carried out. 217 Delegation powers of waterway managers A waterway manager may, by instrument, delegate to any person employed or engaged by the waterway manager under section 216(3) any function or power conferred on the waterway manager by or under this Act, other than this power of delegation. 218 Indemnity for waterway managers The Crown must indemnify a waterway manager against any liability in respect of any loss or damage suffered by the waterway manager in respect of anything necessarily or reasonably done s. 217 -- 225 of 393 -- Part 5.5—Waterway Management Marine Safety Act 2010 No. 65 of 2010 207 or omitted to be done by the waterway manager in good faith— (a) in the exercise of a power or the performance of a function under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act. 219 Safety Director may develop code of practice for waterway management (1) For the purpose of providing practical guidance to waterway managers as to how to manage the waters under their control, the Safety Director may develop a code of practice. (2) A code of practice— (a) may consist of any code, standard, rule, specification or provision relating to any aspect of marine safety infrastructure operations or vessel operations; and (b) may apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the code of practice is approved, or as amended, formulated or published from time to time. __________________ s. 219 -- 226 of 393 -- Part 6.1—Requirements for Engagement of Licensed Harbour Masters Marine Safety Act 2010 No. 65 of 2010 208 CHAPTER 6—HARBOUR MASTERS PART 6.1—REQUIREMENTS FOR ENGAGEMENT OF LICENSED HARBOUR MASTERS 220 Certain entities must engage harbour masters (1) The Port of Melbourne Corporation must ensure that a licensed harbour master is at all times engaged for the port of Melbourne waters or port of Hastings waters. Penalty: 120 penalty units. (2) The Victorian Regional Channels Authority must ensure that a licensed harbour master is at all times engaged for the waters declared under section 5 of the Port Management Act 1995 to be the waters of the port of Geelong. Penalty: 120 penalty units. (3) The Victorian Regional Channels Authority must ensure that a licensed harbour master is at all times engaged for the waters declared under section 5 of the Port Management Act 1995 to be the waters of the port of Portland. Penalty: 120 penalty units. (4) A local port manager must ensure that a licensed harbour master is at all times engaged for any part of the waters under the control of that manager in respect of which the Safety Director has determined that a licensed harbour master is required to be engaged. Penalty: 60 penalty units. s. 220 -- 227 of 393 -- Part 6.1—Requirements for Engagement of Licensed Harbour Masters Marine Safety Act 2010 No. 65 of 2010 209 (5) A waterway manager must ensure that a licensed harbour master is at all times engaged for any part of the waters under the control of that manager in respect of which the Safety Director has determined that a licensed harbour master is required to be engaged. Penalty: 60 penalty units. 221 Identity cards (1) The person or body which has engaged a harbour master must issue an identity card to the harbour master. (2) An identity card must be in a form approved by the Safety Director and must contain— (a) a photograph of the person to whom it is issued; and (b) the signature of the person. (3) A harbour master must produce his or her identity card— (a) before exercising a function under this Chapter, other than the giving of a direction by radio or other electronic communication device; and (b) if requested to do so, in the course of exercising a function under this Chapter, other than the giving of a direction by radio or other electronic communication device. Penalty: 5 penalty units. (4) Before a harbour master gives a direction by radio or other electronic communication device to another person, the harbour master must warn the person to whom the direction is given that failure to comply with the direction may constitute an offence under section 237(1). s. 221 -- 228 of 393 -- Part 6.1—Requirements for Engagement of Licensed Harbour Masters Marine Safety Act 2010 No. 65 of 2010 210 (5) A person who has been issued with an identity card must return it to the Safety Director, or the person who issued it, on demand. Penalty: 5 penalty units. __________________ s. 221 -- 229 of 393 -- Part 6.2—Licensing of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 211 PART 6.2—LICENSING OF HARBOUR MASTERS 222 Person must not act as a harbour master without harbour master licence A person must not act as the harbour master for any port waters or other State waters in relation to which a licensed harbour master is required to be engaged under section 220 unless he or she holds a licence that is in effect. Penalty: 60 penalty units. 223 Application for harbour master licence (1) A person may apply to the Safety Director for a harbour master licence. (2) An application under subsection (1) must be— (a) in the form determined by the Safety Director; and (b) accompanied by— (i) evidence of the applicant's qualifications, competencies and experience to enable the applicant to be a licensed harbour master; and (ii) the prescribed fee (if any). (3) The Safety Director— (a) may require an applicant to provide further information or material in respect of the application; and (b) may require that the information or material be verified; and (c) may require proof of the identity of the person making the application. s. 222 -- 230 of 393 -- Part 6.2—Licensing of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 212 224 Grant of harbour master licence (1) On receiving an application under section 223, the Safety Director may, in accordance with the regulations, grant a licence to the applicant if the Safety Director is satisfied that the applicant— (a) is capable of performing the functions of a harbour master; and (b) meets the requirements determined by the Safety Director. (2) For the purposes of subsection (1), the Safety Director must have regard to any matters that are prescribed. (3) A harbour master licence granted under subsection (1) must specify— (a) the functions the harbour master who holds the licence may perform; and (b) those parts of State waters in which those functions may be performed. (4) A harbour master licence granted under subsection (1) may contain a condition that makes the exercise of a function of a harbour master subject to a direction given from time to time to the harbour master by the Safety Director. (5) The Safety Director must when granting a harbour master licence on which a condition has been imposed under section 227 set out the terms of the condition. (6) A harbour master licence granted under subsection (1)— (a) takes effect on the day that it is granted; and (b) remains in effect unless suspended or cancelled. s. 224 -- 231 of 393 -- Part 6.2—Licensing of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 213 225 Application by harbour master for variation of conditions of harbour master licence (1) A harbour master may apply for a variation of a condition of the harbour master licence the harbour master holds. (2) An application must— (a) be in the form determined by the Safety Director; and (b) set out the details of the proposed variation; and (c) be accompanied by the prescribed fee (if any). (3) The Safety Director— (a) may require an applicant to provide further information or material in respect of the application; and (b) may require that the information or material be verified. 226 Variation of condition of harbour master licence by Safety Director following application On receiving an application under section 225, the Safety Director may, in accordance with the regulations, vary or refuse to vary any condition of the harbour licence that is the subject of the application. 227 Imposition or variation of condition of a harbour master licence by Safety Director (1) The Safety Director may, at any time, impose a condition on a harbour master licence that limits or restricts a function of the harbour master who holds that licence. s. 225 -- 232 of 393 -- Part 6.2—Licensing of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 214 (2) Without limiting subsection (1), the Safety Director may, after first consulting with the person or body who has engaged a harbour master, impose a condition on the harbour master licence of that harbour master at any time during the period the licence is in effect. (3) The Safety Director may, after first consulting with the person or body who engaged a harbour master, vary a condition of the harbour master licence that has been imposed under subsection (2). 228 Requirement as to notification of licence condition The Safety Director must not impose or vary a condition under section 227 unless the Safety Director has first given written notice to the holder of the harbour master licence that he or she intends to do so. __________________ s. 228 -- 233 of 393 -- Part 6.3—Assistant Harbour Masters Marine Safety Act 2010 No. 65 of 2010 215 PART 6.3—ASSISTANT HARBOUR MASTERS 229 Authorisation to act as assistant harbour master (1) The Port of Melbourne Corporation may, having first— (a) consulted the harbour master engaged for the port of Melbourne waters or port of Hastings waters; and (b) obtained the approval in writing of the Safety Director— authorise, in writing, a person to act as an assistant harbour master for the port of Melbourne waters or port of Hastings waters. (2) The person or body who has engaged a harbour master for the waters that have been declared under section 5 of the Port Management Act 1995 to be part of the— (a) port of Geelong; or (b) port of Portland— may, having first— (c) consulted the harbour master engaged by that body; and (d) obtained the approval in writing of the Safety Director— authorise, in writing, a person to act as an assistant harbour master for the waters that have been so declared to be part of the port. (3) A local port manager may authorise, in writing, a person to act as an assistant harbour master for any waters under the control of the manager in respect of which the manager has engaged a harbour master, if the manager has first— s. 229 -- 234 of 393 -- Part 6.3—Assistant Harbour Masters Marine Safety Act 2010 No. 65 of 2010 216 (a) consulted the harbour master so engaged; and (b) obtained the approval in writing of the Safety Director. (4) A waterway manager may authorise, in writing, a person to act as an assistant harbour master for any waters under the control of the manager in respect of which the manager has engaged a harbour master, if the manager has first— (a) consulted the harbour master so engaged; and (b) obtained the approval in writing of the Safety Director. (5) An authorisation under this section may be general or may be limited to the exercise of the functions and powers that are specified in the authorisation. (6) A person authorised to act as a harbour master under this section has all the functions and may exercise all the powers that are specified in his or her instrument of authorisation and, when carrying out any such function or exercising any such power, the person acts as the harbour master. (7) The authorisation of a person under this section to carry out a function or exercise a power does not prevent the harbour master from carrying out that function or exercising that power. __________________ s. 229 -- 235 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 217 PART 6.4—FUNCTIONS AND POWERS OF HARBOUR MASTERS 230 Functions of harbour masters (1) The functions of a harbour master are as follows— (a) to control and direct vessels entering and leaving the waters for which he or she has been engaged, including the time and manner of doing so; (b) to control and direct the navigation and other movement of vessels in those waters; (c) to control and direct the position where and the manner in which any vessel may anchor or be secured in those waters; (d) to control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast in those waters; (e) to control and direct the securing or removal of any vessel in those waters in, from or to any position the harbour master thinks fit; (f) any other functions that are conferred on harbour masters by or under this or any other Act. (2) A harbour master must carry out his or her functions under subsection (1) in a manner— (a) that ensures the safety of persons and the safe operation of vessels; and (b) that minimises the effect of vessel operations on the environment. s. 230 -- 236 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 218 231 Powers of harbour masters A harbour master has all the powers that are necessary and convenient to enable him or her to carry out the functions given to the harbour master under this or any other Act. 232 Power of harbour masters to give written and oral directions (1) A harbour master may from time to time give written directions for or with respect to vessels entering or within waters for which he or she has been engaged, including all or any of the following matters— (a) prohibiting entry by any vessel to or requiring the removal of any vessel from the waters for which he or she has been engaged, if the harbour master has reasonable cause to believe that the vessel— (i) is unseaworthy; or (ii) is in imminent danger of sinking and causing an obstruction to navigation in those waters; or (iii) is in imminent danger of causing serious damage to the marine environment or property in those waters; (b) to control and direct the navigation and other movement of vessels in those waters; (c) to control and direct the position where and the manner in which any vessel may anchor or be secured in those waters; (d) to control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast in those waters; s. 231 -- 237 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 219 (e) to control and direct the securing or removal of any vessel in those waters in, from or to any position the harbour master thinks fit; (f) any other thing for or with respect to the management of the operation of vessels in those waters. (2) Before giving a direction under subsection (1), a harbour master must take into account— (a) the safety risk, or the nature and level of a safety risk, that the direction is intended to minimise or eliminate; (b) whether there are alternative ways (legislative or otherwise) to address the matter to be addressed by the direction; (c) the expected benefits and costs of the direction on those persons likely to be affected by the direction, if given. (3) Directions given under subsection (1) must be published in a manner that makes them readily accessible to users of the port. (4) A harbour master may, if it is reasonable to do so, give an oral direction about any matter on which a written direction can be given under subsection (1) for or with respect to a vessel entering or within waters for which he or she has been engaged. (5) A harbour master who has given a direction under subsection (4), must, as soon as possible after giving the direction, make a written copy of the direction and cause the copy to be kept at the business office of the person or body who has engaged the harbour master for a period of 6 years from the date of the direction. s. 232 -- 238 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 220 (6) A harbour master may, as a condition of allowing a vessel to be anchored or secured within any part of the waters for which he or she has been engaged, being waters in which a licensed pilot is required to be engaged, direct that a pilot remain on board the vessel while it is so anchored or secured, whether or not pilotage is compulsory under section 248. 233 Specific provisions as to directions relating to the entry and removal of vessels (1) A harbour master must not give any direction prohibiting the entry of a vessel to the waters for which he or she has been engaged or requiring the removal of a vessel from those waters under section 232 if the direction would endanger the life of any person on the vessel. (2) A direction given by a harbour master prohibiting the entry of a vessel to the waters for which he or she has been engaged or requiring the removal of a vessel from those waters under section 232 may be revoked by order of the Safety Director. 234 General provisions relating to harbour master directions (1) A harbour master must not give any direction under section 232 that would result in a contravention of any law relating to the State waters or vessel concerned or that would impede the proper administration of the customs or quarantine services within those waters. (2) If a direction given by a harbour master under section 232 is inconsistent with a direction given by the Safety Director under item 26 of Schedule 1, the direction given by the Safety Director prevails and the harbour master's direction is, to the extent of the inconsistency, of no effect. s. 233 -- 239 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 221 235 Amendment and revocation of directions (1) A direction given by a harbour master under section 232 may be amended or revoked by any harbour master who has been engaged for the waters in respect of which the direction applies. (2) The Safety Director, by written notice, may direct a harbour master who has been engaged for the waters in respect of which a direction given under section 232 applies to amend or revoke the direction if the Safety Director considers the direction to be unsafe or unreasonable. (3) A harbour master given a direction under subsection (2) must comply with the direction without delay. 236 Harbour master may carry out direction (1) If— (a) there is no person on board any vessel to whom a harbour master may give a direction under this Chapter and there are reasonable grounds for the harbour master to act urgently without giving a direction; or (b) a direction under this Chapter or under the regulations is not complied with— the harbour master may cause the vessel to be dealt with as required by the harbour master. (2) For the purposes of subsection (1), the harbour master (or a person authorised by the harbour master for the purposes of this section) may board a vessel and move, secure or otherwise operate the vessel. (3) The person or body which has engaged the harbour master may recover from the master or owner of a vessel referred to in subsection (1) as a civil debt in any court of competent jurisdiction the reasonable charges and expenses incurred in s. 235 -- 240 of 393 -- Part 6.4—Functions and Powers of Harbour Masters Marine Safety Act 2010 No. 65 of 2010 222 the exercise of the harbour master's functions under that subsection. 237 Offence to fail to comply with direction or obstruct, harbour master (1) The master of a vessel must not, without reasonable excuse, refuse or fail to comply with— (a) any direction given under this Chapter to the master by a harbour master; or (b) any direction in the regulations. Penalty: 120 penalty units. (2) A person must not, without reasonable excuse, obstruct a harbour master (or a person acting under the direction of a harbour master) performing a function or exercising any power under this Chapter. Penalty: 60 penalty units. __________________ s. 237 -- 241 of 393 -- Part 6.5—Other Matters Marine Safety Act 2010 No. 65 of 2010 223 PART 6.5—OTHER MATTERS 238 Protection from liability (1) A harbour master, or any other person exercising the functions of a harbour master, is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under or in connection with this Chapter or a direction in the regulations; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Chapter or a direction in the regulations. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a harbour master or person exercising the functions of a harbour master, attaches instead to the port management body, local port manager or waterway manager by which the harbour master or person is engaged. __________________ s. 238 -- 242 of 393 -- Part 7.1—Provision of Pilotage Services Marine Safety Act 2010 No. 65 of 2010 224 CHAPTER 7—PILOTAGE PART 7.1—PROVISION OF PILOTAGE SERVICES 239 Offence to provide pilotage services without registration A person must not provide pilotage services unless that person is, or is employed or engaged by, a pilotage services provider registered under this Part. Penalty: In the case of a natural person, 20 penalty units; In the case of a body corporate, 60 penalty units. 240 Application for registration as a pilotage services provider (1) A person who proposes to provide pilotage services may apply to the Safety Director to be registered as a registered pilotage services provider. (2) An application under subsection (1) must— (a) be in the form determined by the Safety Director; and (b) contain— (i) the name and address of the applicant; and (ii) the name and identification number of any vessel to be used in connection with the provision of pilotage services; and s. 239 -- 243 of 393 -- Part 7.1—Provision of Pilotage Services Marine Safety Act 2010 No. 65 of 2010 225 (iii) the name and licence number of each pilot employed or engaged by the applicant, or if the applicant holds a pilot licence, the number of that licence; and (iv) details of arrangements by the applicant to transport pilots other than by vessel; and (c) be accompanied by the prescribed fee (if any). (3) The Safety Director— (a) may require an applicant to provide further information or material in respect of the application; and (b) may require that the information or material be verified; and (c) may require proof of the identity of the person making the application. 241 Registration as a pilotage service provider On receiving an application under section 240, the Safety Director must register the person as a pilotage services provider. 242 Duration of registration The registration of a pilotage services provider— (a) takes effect at the time of issue of a certificate under section 243; and (b) remains in effect unless sooner suspended or cancelled. s. 241 -- 244 of 393 -- Part 7.1—Provision of Pilotage Services Marine Safety Act 2010 No. 65 of 2010 226 243 Certificates of registration The Safety Director, on registering a person under this Part, must issue a certificate of registration to that person. 244 Register of pilotage service providers (1) The Safety Director must establish and maintain a register of all pilotage services providers registered under this Part. (2) The register must contain the following information— (a) the name and address of the pilotage services provider; and (b) the name and identification number of any vessel to be used in connection with the provision of pilotage services; and (c) the date of commencement of the provision of pilotage services by the provider; and (d) the name and licence number of each pilot employed or engaged by the provider, or if the provider holds a pilot licence, the number of that licence; and (e) details of arrangements by the provider to transport pilots other than by vessel; and (f) any other information determined by the Safety Director to be included in the register. (3) The register may be inspected at the office of the Safety Director by any person during business hours free of charge. (4) A person may obtain a copy of, or an extract from, the register on payment of the prescribed fee (if any). s. 243 -- 245 of 393 -- Part 7.1—Provision of Pilotage Services Marine Safety Act 2010 No. 65 of 2010 227 245 Requirement to notify the Safety Director of changes to registration information A pilotage services provider must notify the Safety Director within 14 days after any change to information recorded in a certificate of registration. Penalty: 5 penalty units. 246 Records to be kept A pilotage services provider must keep records containing the following information— (a) the name and licence number of each pilot employed or engaged by the provider, or if the provider holds a pilot licence, the number of that licence; and (b) the number of hours worked by each pilot in any period of 24 hours, indicating the starting and finishing times for work and rest; and (c) the annual recreation leave taken by each pilot; and (d) any other information that is prescribed. Penalty: 20 penalty units. 247 Offence to fail to comply with safety standards A pilotage services provider must comply with the prescribed safety standards that apply to the provider. Penalty: 60 penalty units. __________________ s. 245 -- 246 of 393 -- Part 7.2—Pilots Marine Safety Act 2010 No. 65 of 2010 228 PART 7.2—PILOTS Division 1—General requirement to use pilots 248 Offence not to use a pilot (1) The master of a vessel must not— (a) enter or leave pilot required waters or attempt to enter or leave pilot required waters; or (b) navigate the vessel within pilot required waters or attempt to do so— without using the services of a licensed pilot. Penalty: 120 penalty units. (2) Subsection (1) does not apply to— (a) State waters for which no pilot is licensed; or (b) a pilot exempt master; or (c) a master who holds a local knowledge certificate for port waters in relation to those port waters; or (d) a vessel that is less than 35 metres long. 249 Offence to act as a pilot without a pilot licence or pilot exemption A person must not act as a pilot unless that person— (a) holds a pilot licence granted by the Safety Director under this Part that is in effect; or (b) is a master who holds a pilot exemption granted under this Part that is in effect. Penalty: 120 penalty units. s. 248 -- 247 of 393 -- Part 7.2—Pilots Marine Safety Act 2010 No. 65 of 2010 229 Division 2—Declaration of pilot required waters 250 Declaration The Safety Director, by notice published in the Government Gazette, may declare a part of State waters as waters in which a licensed pilot is required to be engaged. Note In making a declaration under this section the Safety Director must have regard to guidelines made by the Minister under section 31A of the Transport Integration Act 2010: see section 258(2). Division 3—Pilot licences 251 Application for pilot licence (1) A person may apply to the Safety Director for a pilot licence. (2) An application under subsection (1) must be— (a) in the form determined by the Safety Director; and (b) accompanied by— (i) evidence of the applicant's qualifications, competencies and experience to enable the applicant to be a licensed pilot; and (ii) the prescribed fee (if any). (3) The Safety Director— (a) may require an applicant to provide further information or material in respect of the application; and (b) may require that the information or material be verified; and (c) may require proof of the identity of the person making the application. s. 250 -- 248 of 393 -- Part 7.2—Pilots Marine Safety Act 2010 No. 65 of 2010 230 252 Grant of pilot licence (1) On receiving an application under section 251(1), the Safety Director may grant a pilot licence to the applicant if the Safety Director is satisfied that the applicant— (a) has the appropriate qualifications, competencies and experience to hold a pilot licence; and (b) meets the requirements determined by the Safety Director. (2) A pilot licence granted under subsection (1) may be granted subject to a condition imposed by the Safety Director. (3) A pilot licence granted under subsection (1)— (a) takes effect on the day that it is granted; and (b) remains in effect unless suspended or cancelled. Division 4—Pilot exemptions 253 Application for pilot exemption (1) A master of a vessel may apply to the Safety Director for an exemption from the requirement to use the services of a pilot in pilot required waters. (2) An application under subsection (1) must be— (a) in the form determined by the Safety Director; and (b) accompanied by— (i) evidence of the applicant's qualifications, competencies and experience to enable the applicant to hold a pilot exemption; and (ii) the prescribed fee (if any). s. 252 -- 249 of 393 -- Part 7.2—Pilots Marine Safety Act 2010 No. 65 of 2010 231 (3) The Safety Director— (a) may require an applicant to provide further information or material in respect of the application; and (b) may require that the information or material be verified; and (c) may require proof of the identity of the person making the application. 254 Grant of pilot exemption (1) On receiving an application under section 253(1), the Safety Director may grant a pilot exemption to the applicant if the Safety Director is satisfied that the applicant— (a) has the appropriate qualifications, competencies and experience to hold a pilot exemption; and (b) meets the requirements determined by the Safety Director. (2) A pilot exemption granted under subsection (1) may be granted subject to any condition imposed by the Safety Director, including a condition limiting the exemption to a particular port. (3) A pilot exemption granted under subsection (1)— (a) takes effect on the day that it is granted; and (b) remains in effect for a period of 2 years after the date it is granted unless sooner suspended or cancelled. 255 Effect of pilot exemption A master who holds a pilot exemption for a particular port is exempted from the requirement to engage a pilot with respect to that port. s. 254 -- 250 of 393 -- Part 7.2—Pilots Marine Safety Act 2010 No. 65 of 2010 232 256 Renewal of pilot exemption (1) A pilot exempt master may apply for the renewal of the pilot exemption the master holds. (2) An application under subsection (1) must be made before the pilot exemption expires. (3) Section 254 applies to the renewal of a pilot exemption as if a reference to a master who applied for a pilot exemption in that section were a reference to the pilot exempt master who applied for the renewal of the pilot exemption the master holds. __________________ s. 256 -- 251 of 393 -- Part 7.3—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 233 PART 7.3—MISCELLANEOUS MATTERS 257 Liability of pilots and pilotage service providers (1) A pilot who has the conduct of a vessel in State waters is subject to the authority of the master of the vessel and the master is not relieved from responsibility for the conduct and navigation of the vessel by reason only of the vessel being under pilotage. (2) Despite any law of the State, the owner or master of a vessel navigating in State waters under circumstances in which pilotage is compulsory under such a law is answerable for any loss or damage caused by the vessel, or by a fault of the navigation of the vessel, in the same manner as the master or owner would if pilotage were not compulsory. (3) If a pilot— (a) does an act, issues an instruction, or provides information or advice in or in relation to the pilotage of a vessel in State waters; and (b) that act is done, that instruction is issued, or that information or advice is provided, in the course of the pilot's duty and in good faith; and (c) that act, instruction, information or advice affects the navigation of the vessel in State waters so that loss or damage is caused to or by the vessel— neither the pilot nor any pilotage services provider responsible for the provision of the pilot's services is liable in civil proceedings for that loss or damage. __________________ s. 257 -- 252 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 234 CHAPTER 8—GENERAL PART 8.1—ADMINISTRATION OF ACT Division 1—The Safety Director 258 Functions of the Safety Director (1) The functions of the Safety Director are— (a) to register vessels; and (b) to license masters of recreational vessels and regulated hire and drive vessels; and (c) to test, and approve the testing of, masters of registered recreational vessels and regulated hire and drive vessels; and (d) to issue certificates and develop appropriate standards for the safe construction, crewing, equipment and operation of vessels, and to take steps to ensure that those standards are maintained; and (e) to issue certificates of competency and to develop appropriate standards for the training of crews, and to take steps to ensure that those standards are maintained; and (f) to issue local knowledge certificates; and (g) to determine the fitness of a person to hold a marine licence or a certificate of competency; and (h) to licence harbour masters and determine standards for the training of harbour masters; and s. 258 -- 253 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 235 (i) to license pilots and to develop appropriate standards for the training of pilots and pilot exempt masters, and to ensure that those standards are maintained; and (j) to register pilotage services providers; and (k) to approve appropriate alternative safety standards for the provision of pilotage services by pilotage services providers; and (l) to make waterway rules; and (m) to develop and enforce standards and procedures for navigation and maritime safety on State waters; and (n) to develop appropriate standards for the provision and maintenance of navigation aids for State waters; and (o) to develop appropriate standards for the dredging and maintenance of channels in State waters; and (p) to direct the removal of impediments or obstructions to navigation on State waters; and (q) to determine the parts of State waters (other than port waters of the port of Melbourne, the port of Geelong, the port of Portland or the port of Hastings) with respect to which a licensed harbour master is required to be engaged; and (r) to investigate incidents adequately in order to identify deficiencies in operational procedures, vessel standards or crew training; and (s) to provide vessel survey and consultancy services; and s. 258 -- 254 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 236 (t) monitor compliance with a relevant marine safety law; and (u) to investigate alleged breaches of a relevant marine safety law and to prosecute for them. (2) The Safety Director must have regard to guidelines made by the Minister under section 31A of the Transport Integration Act 2010 in making— (a) a declaration under section 7, 81 or 250; (b) a determination under subsection (1)(q). Note See also section 173 of the Transport Integration Act 2010. 259 Powers of the Safety Director (1) Without derogating from any other functions or powers of the Director under any other Act, the Safety Director may do all things that are necessary or convenient to enable him or her to carry out his or her functions, including, but not limited to, the powers specified in Schedule 1. (2) Despite subsection (1), the Safety Director must not exercise any of his or her powers in a way that is inconsistent with the regulations. 260 Exemptions (1) The Safety Director may, by notice in writing to any person affected, exempt any person or vessel or any class of person or vessel from any requirement of this Act if the Safety Director decides— (a) that the requirement has been substantially complied with; or (b) that the purpose of the requirement has been adequately achieved; or s. 259 -- 255 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 237 (c) that compliance would, in the particular circumstances, be impracticable, unnecessary, or inappropriate. (2) An exemption may be either indefinite or for a specified period and either absolute or on specified conditions. (3) The Safety Director may at any time suspend or cancel an exemption, or alter its period or its terms and conditions, by notice in writing to any person affected. 261 Provision or maintenance of navigation aids by Safety Director (1) This section applies if a port management body, a local port manager or a waterway manager does not comply with a standard developed by the Safety Director under Part 5.2 for— (a) the provision and maintenance of navigation aids in State waters which are under the control of the port management body, local port manager or waterway manager; or (b) dredging and maintenance of channels which are under the control of the port management body, local port manager or waterway manager. (2) The Safety Director may— (a) provide or maintain (as the case requires) the navigation aids in accordance with that standard; (b) carry out the dredging and maintenance of channels. s. 261 -- 256 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 238 262 Safety Director may cause vessel to be boarded, moved, secured or operated in certain cases (1) This section applies if— (a) there is no person on board a vessel to whom the Safety Director may give a direction under item 24 of Schedule 1 and there are reasonable grounds for the Director to act urgently without giving the direction; or (b) a direction given by the Safety Director under item 24 of Schedule 1 is not complied with. (2) The Safety Director may cause a person authorised by the Director to board the vessel and move, secure or otherwise operate it. 263 Recovery of costs The Safety Director may recover as a civil debt in any court of competent jurisdiction— (a) the cost of doing something under section 261 from the port management body, the local port manager or the waterway manager to which that section applies; (b) the reasonable charges and expenses incurred by the Safety Director from the master or owner of the vessel to which section 262 applies. 264 Inquiries into marine safety matters (1) The Safety Director may conduct an inquiry into a marine safety matter. (2) The Safety Director, for the purposes of conducting an inquiry into a marine safety matter, may require— (a) a vessel to remain in port waters for a period not exceeding 24 hours; and s. 262 -- 257 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 239 (b) a person to give written or oral information to the Safety Director; and (c) a person to give to the Safety Director any documents relevant to the inquiry. (3) If the Safety Director commences an inquiry under this section, the Safety Director— (a) may suspend a permission or exemption granted or issued under this Act for a period not exceeding 14 days; and (b) must notify the person holding the permission or exemption under this Act that the permission or exemption has been suspended for the period specified in the notice. (4) An inquiry must be conducted in a manner that any person against whom an allegation of incompetence or breach of this Act or the regulations or a condition of a permission or exemption granted or issued under this Act is made is given an opportunity— (a) to be heard; and (b) to show why their permission or exemption should not be suspended or cancelled. (5) In conducting an inquiry the Safety Director has the powers conferred by sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 on a board appointed by the Governor in Council. 265 Extension of suspension pending inquiry (1) VCAT may extend the period of a suspension imposed— (a) by the Safety Director under section 264(3); or (b) by VCAT under this section. s. 265 -- 258 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 240 (2) VCAT may only extend the period of a suspension— (a) on the application of the Safety Director; and (b) if it is satisfied that there is reasonable cause to do so. (3) In extending a period of suspension, VCAT must specify the period for which the extension applies. 266 Accountability for damage (1) The Safety Director may recover damages in any court of competent jurisdiction from a person who removed or damaged a light house, light ship, buoy, beacon, navigation aid or other land or sea mark used for the safety or convenience of navigation. (2) Nothing in subsection (1) prejudices any other rights which the Safety Director may have or limits any liabilities to which a person may be subject in respect of any such removal or damage as is referred to in that subsection. 267 Order to remove obstructions in navigable waters (1) In this section and section 268— obstruction to navigation means anything in, over or on navigable waters (including a vessel, whether wrecked or not) that— (a) is a danger to the safe navigation of vessels; or (b) is moored, berthed or placed in contravention of this Act or the regulations— but does not include anything lawfully erected in, over or on navigable waters. s. 266 -- 259 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 241 (2) The Safety Director may direct the owner of, or a person responsible for, an obstruction to navigation to remove the obstruction. (3) The direction must be given in writing and must specify by when the obstruction must be removed. (4) The person to whom the direction is given must comply with the direction within the time specified in the direction, unless the person has a reasonable excuse for not doing so. Penalty: 60 penalty units. 268 Safety Director may remove obstructions to navigation (1) The Safety Director may remove, or authorise the removal of, any obstruction to navigation. (2) The Safety Director may take action under this section regardless of— (a) whether or not a direction for the removal of the obstruction has been given under section 267; or (b) if a direction has been made under section 267, whether or not the time specified in the direction for compliance with the direction has expired. (3) Action taken under this section may include the removal of the obstruction by its destruction if it is reasonable to do so in the circumstances. (4) The Safety Director may dispose of anything removed under this section. (5) The Safety Director may recover any reasonable costs incurred in taking action under this section as a debt due and payable by the owner of, or the person responsible for, the obstruction. s. 268 -- 260 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 242 269 Power to prohibit operation of particular vessel (1) The Safety Director may, in accordance with the regulations, direct that a particular vessel (whether registered or not)— (a) must not be operated on State waters; or (b) may only be operated on State waters on specified conditions for a specified period. (2) A direction made by the Safety Director under subsection (1) may be indefinite or for a specified period. (3) A member of the police force may, in accordance with the regulations, direct that a particular vessel (whether registered or not)— (a) must not be operated on State waters; or (b) may only be operated on State waters on specified conditions for a specified period. (4) A person must not operate a vessel in contravention of a direction made under subsection (1) or (2). Penalty: 60 penalty units. Division 2—Functions and powers of other entities 270 Chief Commissioner of Police may disclose reportable incidents to Safety Director The Chief Commissioner of Police may disclose to the Safety Director any information in the possession of the Chief Commissioner concerning any reportable incident involving a vessel on State waters. s. 269 -- 261 of 393 -- Part 8.1—Administration of Act Marine Safety Act 2010 No. 65 of 2010 243 271 Acquisition of land (1) The Minister may purchase or compulsorily acquire any land which is or may be required, whether by the Safety Director, a port management body, a local port manager or a waterway manager, for or in connection with, or as incidental to, the provision of a navigation aid for State waters. (2) The Land Acquisition and Compensation Act 1986 applies to this section and for that purpose— (a) the Marine Safety Act 2010 is the special Act; and (b) the Minister is the Authority. __________________ s. 271 -- 262 of 393 -- Part 8.2—Codes of Practice Marine Safety Act 2010 No. 65 of 2010 244 PART 8.2—CODES OF PRACTICE 272 Codes of practice—safety duties (1) For the purpose of providing practical guidance to a person who may be placed under an obligation by or under Chapter 2, the Minister may, subject to section 276, approve one or more codes of practice. (2) A code of practice— (a) may consist of any code, standard, rule, specification or provision relating to any aspect of marine operations, marine safety equipment design and supply activities, or vessel design and supply activities; and (b) may apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the code of practice is approved, or as amended, formulated or published from time to time. (3) The approval of a code of practice takes effect on the day on which notice of the approval is published in the Government Gazette, or on any later day specified in the notice. Note A code of practice approved under this section is disallowable by either House of Parliament: see section 278. 273 Revisions to approved codes of practice (1) Subject to section 276, the Minister may— (a) approve any revision of the whole, or any part, of an approved code of practice; (b) revoke the approval of a code of practice. s. 272 -- 263 of 393 -- Part 8.2—Codes of Practice Marine Safety Act 2010 No. 65 of 2010 245 (2) The approval of a revision to an approved code of practice takes effect on the day on which notice of the approval of the revision is published in the Government Gazette, or on any later day specified in the notice. 274 Revocation of approvals of codes of practice The approval of an approved code of practice ceases to be of effect at the end of the day on which notice of the revocation of the approval is published in the Government Gazette, or on any later day specified in the notice. 275 Availability of approved codes of practice The Minister must cause— (a) a current copy of every approved code of practice; and (b) a copy of every document applied, incorporated or referred to in an approved code of practice (in the form in which that document has effect in the approved code of practice)— to be made available for inspection by members of the public without charge at a prescribed place during business hours free of charge. 276 Minister may consult before approving code of practice or revision to code of practice Before the Minister approves a code of practice or any revision of the whole, or any part, of an approved code of practice under section 272 or 273, the Minister may consult with any person or body that may be affected by the approved code of practice, or revision of an approved code of practice, to be approved. s. 274 -- 264 of 393 -- Part 8.2—Codes of Practice Marine Safety Act 2010 No. 65 of 2010 246 277 Effect of approved code of practice A person is not liable to any civil or criminal proceedings by reason only that he, she or it has failed to observe any provision of an approved code of practice. Note A person who complies with a compliance code may however, be taken to have complied with this Act (see section 299). 278 Tabling and disallowance of approved codes of practice (1) On or before the 6th sitting day after notice of an approved code of practice is published in the Government Gazette, the Minister must ensure that a copy of that code is laid before each House of the Parliament. (2) A failure to comply with subsection (1) does not affect the operation or effect of the approved code of practice but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament. (3) An approved code of practice may be disallowed in whole or in part by either House of Parliament. (4) Part 5 of the Subordinate Legislation Act 1994 applies to an approved code of practice as if— (a) a reference in that Part to a "statutory rule" were a reference to an approved code of practice; and (b) a reference in section 23(1)(c) of that Act to "section 15(1)" were a reference to subsection (1). s. 277 -- 265 of 393 -- Part 8.2—Codes of Practice Marine Safety Act 2010 No. 65 of 2010 247 (5) A reference to an approved code of practice in this section includes a reference to any amendment to, or revision of the whole or any part of, an approved code of practice. __________________ s. 278 -- 266 of 393 -- Part 8.3—Marine Enforcement Policy Marine Safety Act 2010 No. 65 of 2010 248 PART 8.3—MARINE ENFORCEMENT POLICY 279 Safety Director to develop, maintain and review Marine Enforcement Policy (1) The Safety Director must develop, maintain and review a Marine Enforcement Policy in accordance with this Part. (2) The purpose of a Marine Enforcement Policy is to support and promote maintaining compliance and enforcement of a relevant marine safety law throughout the State by— (a) specifying cost effective and efficient options in respect of monitoring compliance with, and enforcing, relevant marine safety laws in the State; and (b) specifying how options will be utilised by enforcement agencies to monitor compliance and enforcement of relevant marine safety laws consistently throughout the State. (3) The Safety Director must cause the Marine Enforcement Policy developed under this section to be published on the Internet no later than 12 months after the commencement of this section. (4) The Marine Enforcement Policy must be reviewed every 3 years in accordance with section 281. 280 Safety Director must co-ordinate and support implementation (1) The Safety Director must co-ordinate and support the implementation of the Marine Enforcement Policy by— (a) members of the police force; (b) transport safety officers; s. 279 -- 267 of 393 -- Part 8.3—Marine Enforcement Policy Marine Safety Act 2010 No. 65 of 2010 249 (c) any person employed or engaged by port management bodies, local port managers and waterway managers. (2) For the purposes of co-ordinating and supporting the implementation of the Marine Enforcement Policy under subsection (1), the Safety Director must provide training, guidance and support to transport safety officers who monitor compliance with, and enforce, a relevant marine safety law. (3) In addition to subsection (2), the Safety Director may co-ordinate and support the implementation of the Marine Enforcement Policy in any other manner the Safety Director determines to be appropriate. 281 Safety Director must consult when developing or reviewing Marine Enforcement policy (1) The Safety Director must develop and review the Marine Enforcement Policy in consultation with— (a) members of the police force; (b) transport safety officers; (c) port management bodies, local port managers and waterway managers; (d) owners and masters of commercial vessels; (e) representatives of owners and masters of recreational vessels. (2) The Safety Director may consult with marine safety regulators in other jurisdictions when developing and reviewing the Marine Enforcement Policy if the Safety Director considers that it would be useful to do so. s. 281 -- 268 of 393 -- Part 8.3—Marine Enforcement Policy Marine Safety Act 2010 No. 65 of 2010 250 282 Content of Marine Enforcement Policy (1) The Marine Enforcement Policy must provide guidance on the exercise of— (a) investigation powers; and (b) enforcement powers. (2) The Marine Enforcement Policy may provide guidance on other matters relevant to monitoring compliance with and enforcing relevant marine safety laws. 283 Marine Enforcement Policy to be had regard to Persons involved in compliance monitoring and enforcement activities under relevant marine safety laws, the Transport (Compliance and Miscellaneous) Act 1983 or the regulations under that Act must, so far as is reasonably practicable, have regard to the Marine Enforcement Policy when performing duties and exercising functions under those laws, that Act or those regulations. __________________ s. 282 -- 269 of 393 -- Part 8.4—Offences by Bodies Corporate Marine Safety Act 2010 No. 65 of 2010 251 PART 8.4—OFFENCES BY BODIES CORPORATE 284 Imputing conduct to bodies corporate For the purposes of this Act and the regulations, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer (within the meaning given by section 9 of the Corporations Act) of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. 285 Liability of officers of bodies corporate (1) If a body corporate (including a body corporate representing the Crown) contravenes a provision of this Act or the regulations and the contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer is guilty of an offence and liable to a fine not exceeding the maximum fine for an offence constituted by a contravention by a natural person of the provision contravened by the body corporate. (2) An offence against subsection (1) is summary or indictable in nature according to whether the offence constituted by the contravention by the body corporate is summary or indictable. (3) In determining whether an officer of a body corporate is guilty of an offence, regard must be had to— (a) what the officer knew about the matter concerned; and s. 284 -- 270 of 393 -- Part 8.4—Offences by Bodies Corporate Marine Safety Act 2010 No. 65 of 2010 252 (b) the extent of the officer's ability to make, or participate in the making of, decisions that affect the body corporate in relation to the matter concerned; and (c) whether the contravention by the body corporate is also attributable to an act or omission of any other person; and (d) any other relevant matter. (4) An officer of a body corporate may be convicted or found guilty of an offence in accordance with subsection (1) whether or not the body corporate has been convicted or found guilty of the offence committed by it. (5) An officer of a body corporate (including a body corporate representing the Crown) who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer. Notes 1 Officer of a body corporate includes a person who makes or participates in the making of decisions that affect the whole or a substantial part of the body corporate's business and a person who has the capacity to affect significantly the body corporate's financial standing (see section 3). 2 For volunteer, see section 3. __________________ s. 285 -- 271 of 393 -- Part 8.5—Offences by Partnerships and Unincorporated Bodies or Associations Marine Safety Act 2010 No. 65 of 2010 253 PART 8.5—OFFENCES BY PARTNERSHIPS AND UNINCORPORATED BODIES OR ASSOCIATIONS 286 Liability of officers of partnerships and unincorporated bodies or associations (1) Subject to subsection (2), if— (a) this Act imposes a duty on a person or provides that a person is guilty of an offence; and (b) the person is a partnership or an unincorporated body or association (including a partnership or an unincorporated body or association representing the Crown)— the reference to the person is taken to be instead a reference to each officer of the partnership, body or association (as the case may be). (2) If an offence against this Act is committed by an officer of a partnership or an unincorporated body or association because of the effect of subsection (1), the officer is only guilty of the offence if the commission of the offence is attributable to the officer failing to take reasonable care. (3) The penalty to which an officer of a partnership or an unincorporated body or association is liable for an offence committed by him or her because of the effect of subsection (1) is a fine not exceeding the maximum fine that could be imposed by a court on a natural person found guilty of the same offence committed at the same time (otherwise than because of the effect of subsection (1)). (4) In determining whether an officer of a partnership or unincorporated body or association is guilty of an offence, regard must be had to— s. 286 -- 272 of 393 -- Part 8.5—Offences by Partnerships and Unincorporated Bodies or Associations Marine Safety Act 2010 No. 65 of 2010 254 (a) what the officer knew about the matter concerned; and (b) the extent of the officer's ability to make, or participate in the making of, decisions that affect the partnership, body or association in relation to the matter concerned; and (c) whether the commission of the offence is also attributable to an act or omission of any other person; and (d) any other relevant matter. (5) An officer of a partnership or unincorporated body or association who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer. Notes 1 Officer of a partnership or unincorporated body or association includes a person who makes or participates in the making of decisions that affect the whole or a substantial part of the business of the partnership, body or association and a person who has the capacity to affect significantly the financial standing of the partnership, body or association (see section 3). 2 For volunteer, see section 3. __________________ s. 286 -- 273 of 393 -- Part 8.6—Proceedings Against the Crown Marine Safety Act 2010 No. 65 of 2010 255 PART 8.6—PROCEEDINGS AGAINST THE CROWN 287 Responsible agency for the Crown (1) If proceedings are brought against the Crown for an offence against this Act or the regulations the responsible agency in respect of the offence may be specified in any document initiating, or relating to, the proceedings. (2) In this section, the responsible agency in respect of an offence is the agency of the Crown— (a) whose acts or omissions are alleged to constitute the offence; or (b) if that agency has ceased to exist, that is the successor of that agency; or (c) if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency. (3) The responsible agency in respect of an offence is entitled to act in proceedings against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency. (4) The person prosecuting the offence may change the responsible agency during the proceedings with the court's leave. __________________ s. 287 -- 274 of 393 -- Part 8.7—Review of Decisions Marine Safety Act 2010 No. 65 of 2010 256 PART 8.7—REVIEW OF DECISIONS 288 Definitions (1) In this Part— eligible person means a person who— (a) has applied for a permission; or (b) has held, or holds, a permission; or (c) has been given a direction by the Safety Director; reviewable decision means the decision of the Safety Director to— (a) not grant or issue a permission; (b) suspend, cancel or revoke a permission; (c) impose or vary a condition of a permission; (d) issue a written direction. (2) To avoid doubt, sections 4 and 5 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of this Act. Note Under section 4 of the Victorian Civil and Administrative Tribunal Act 1998, a person makes a decision if the person refuses to make a decision or an instrument, imposes a condition or restriction or does or refuses to do any other act or thing. Section 5 of that Act sets out when a person's interests are affected by a decision. 289 Internal review (1) An eligible person in relation to a reviewable decision, may apply to the Safety Director for review of the decision within— (a) 28 days after the day on which the decision first came to the eligible person's notice; or s. 288 -- 275 of 393 -- Part 8.7—Review of Decisions Marine Safety Act 2010 No. 65 of 2010 257 (b) such longer period as the Safety Director allows. (2) The application must be in the form approved (in writing) by the Safety Director. (3) If an application is made to the Safety Director in accordance with this section, the Safety Director must make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Safety Director considers appropriate. (4) The Safety Director must give a written notice to the applicant setting out— (a) the decision of the Safety Director under subsection (3) and the reasons for the decision; and (b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based— and must do so within 28 days after the application is made. (5) If the Safety Director has not notified an applicant of a decision in accordance with subsection (4), the Safety Director is taken to have made a decision to affirm the reviewable decision. (6) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Safety Director, on his or her own initiative or on the application of the applicant for review, stays the operation of the decision pending the determination of the review. s. 289 -- 276 of 393 -- Part 8.7—Review of Decisions Marine Safety Act 2010 No. 65 of 2010 258 (7) The Safety Director must make a decision on an application for a stay within 24 hours after the making of the application. (8) If the Safety Director has not made a decision in accordance with subsection (7), the Safety Director is taken to have made a decision to grant a stay. (9) The Safety Director may attach any conditions to a stay of the operation of a reviewable decision that he or she considers appropriate. 290 Review by VCAT (1) A person may apply to VCAT for review of— (a) a reviewable decision; or (b) a decision made, or taken to have been made, by the Safety Director under section 289 in respect of a reviewable decision— if the person is an eligible person in relation to the reviewable decision. (2) An application for review must be made within 28 days after the later of— (a) the day on which the person is notified of the decision; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. __________________ s. 290 -- 277 of 393 -- Part 8.8—Court Processes Marine Safety Act 2010 No. 65 of 2010 259 PART 8.8—COURT PROCESSES 291 Jurisdiction For the purpose of giving jurisdiction under this Act, an offence must be treated as having been committed, and a cause of complaint as having arisen, either in the place where it was committed or arose or in any place where the alleged offender or person claimed against, is. 292 Power to prosecute (1) Proceedings for any offence against this Act, the regulations or regulations made under the Port Management Act 1995 may be brought by— (a) any member of the police force; or (b) any person who is authorised by the Safety Director in writing to do so generally or in any particular case; or (c) any person or body authorised in writing to do so either generally or in any particular case by a public authority or other person prescribed for the purposes of this subsection, if the offence occurs on land, waters or premises which are vested in, or under the control of, that public authority or person prescribed. (2) If proceedings are brought by a member of the police force, or by a person authorised by the Safety Director, or by a person or body authorised by a public authority, the proceedings may be conducted before the court by— (a) any other member of the police force; or (b) any other person authorised by the Safety Director; or s. 291 -- 278 of 393 -- Part 8.8—Court Processes Marine Safety Act 2010 No. 65 of 2010 260 (c) any other person or body authorised by the public authority. 293 Evidence of speed If in any criminal proceedings the speed at which a vessel travelled on any occasion is relevant, evidence of the speed of the vessel as indicated or determined on that occasion by a prescribed measuring device when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the vessel on that occasion. 294 General evidentiary provisions (1) A certificate in the prescribed form purporting to be issued by the Safety Director certifying as to any matter that appears in or can be calculated from the records kept by the Safety Director or a delegate of the Safety Director is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. (2) Without limiting any provision of the Evidence (Miscellaneous Provisions) Act 1958 or the Evidence Act 2008, a certificate or document that purports to be issued under any Act of the Commonwealth, or of a State or Territory of the Commonwealth, and that purports to relate in any way to— (a) the registration or non-registration of a vessel; or (b) the person who is the owner of a vessel or in whose name a vessel is registered; or (c) the qualifications of people crewing a vessel; or s. 293 -- 279 of 393 -- Part 8.8—Court Processes Marine Safety Act 2010 No. 65 of 2010 261 (d) any other matter relating to the use of vessels— is, for the purposes of this Act, admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. (3) A certificate in the prescribed form purporting to be issued by the Safety Director certifying that on a particular date a vessel was registered in the name of a particular person is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that on that date that person was the registered person. (4) In any proceedings for a contravention of section 37, proof that a vessel was operated on State waters without having affixed to it any identification number or identifying mark, and any appropriate registration label, required by or under this Act is, in the absence of evidence to the contrary, proof that the vessel was operated in contravention of that section. (5) A certificate in the prescribed form to the effect that a prescribed speed measuring device has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the device has been so tested or sealed. 295 Evidence (1) The production of a document purporting to be a copy of, or an extract from, the Commonwealth of Australia Gazette containing the Uniform Shipping Laws Code or any part of it is evidence— s. 295 -- 280 of 393 -- Part 8.8—Court Processes Marine Safety Act 2010 No. 65 of 2010 262 (a) that the document is a copy of that Code or that part; and (b) that the Code has been adopted by the body of Commonwealth, State and Territory Ministers known as the Australian Transport Council— and, in the absence of evidence to the contrary, is proof of those facts. (2) The certificate in writing of a surveyor or inspector that a vessel does (or does not) comply with a provision of the Uniform Shipping Laws Code is evidence of the fact that the vessel does (or does not) comply with that provision and, in the absence of evidence to the contrary, is proof of that fact. 296 Act presumed to apply to vessels If in any proceedings under this Act the application of this Act to a vessel is in question, this Act must, in the absence of evidence to the contrary, be taken to apply to the vessel. 297 Seizure and sale of vessel and equipment A court which orders the payment of any amount recoverable summarily under this Act may, if the amount is not paid at the time and in the manner specified in the order and if the person ordered to pay is the owner of a vessel, order that the amount outstanding be levied by distress and sale of the vessel and equipment. 298 Summary jurisdiction in indictable offences The provisions of Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009 enabling the hearing of charges for certain indictable offences in a summary way has effect with respect to indictable offences under this Act subject to the following provisions— s. 296 -- 281 of 393 -- Part 8.8—Court Processes Marine Safety Act 2010 No. 65 of 2010 263 (a) any consent required by those provisions to be given by the person charged may, in the absence of that person, be given on that person's behalf by the owner, charterer, manager or operator or the agent of the vessel in respect of which the offence is alleged to have occurred; (b) if the person charged is for the time being out of the jurisdiction, service of any documents relating to the offence is sufficiently served on that person by being served on the agent (if any) of the owner, charterer, manager or operator of the vessel in respect of which the offence is alleged to have occurred. __________________ s. 298 -- 282 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 264 PART 8.9—MISCELLANEOUS MATTERS 299 Effect of compliance with regulations or approved codes of practice If— (a) the regulations or an approved code of practice make provision for or with respect to a duty or obligation imposed by Chapter 2 or the regulations; and (b) a person complies with the regulations or the approved code of practice to the extent that it makes that provision— the person is, for the purposes of that Chapter and the regulations, taken to have complied with that Chapter or the regulations in relation to that duty or obligation. 300 Nationally Agreed Standards (1) This section applies to— (a) the Uniform Shipping Laws Code; and (b) the National Standard for Commercial Vessels; and (c) the National Standard for Administration of Marine Safety. (2) A provision of a document to which this section applies that is applied, adopted or incorporated by the regulations has effect with any modifications that are necessary to give it effect, and in particular— (a) a reference to the Authority must be read as a reference to the Safety Director; (b) a reference to a surveyor must be read as a reference to a transport safety officer. s. 299 -- 283 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 265 301 Forgery etc. of documents and identification marks (1) A person must not— (a) forge; or (b) fraudulently alter or use; or (c) fraudulently lend or allow to be used by another person— any notice, certificate, licence or other document, or any identification number or identifying mark, that is authorised, issued or required by or under this Act. Penalty: 60 penalty units. (2) A person must not, otherwise than in accordance with this Act, make, use, knowingly have custody or possession of, sell or alter any paper or other material purporting to be a notice, certificate, licence or other document, or any identification number or identifying mark, that is authorised, issued or required by or under this Act. Penalty: 60 penalty units. 302 Offence to interfere etc. with navigation aid (1) A person must not, without lawful authority, wilfully or negligently interfere or tamper with, or obstruct the use or operation of, a navigation aid. Penalty: 1200 penalty units. (2) An offence against subsection (1) is an indictable offence. 303 Offence to obstruct authorised person (1) In this section— authorised person means the Safety Director, a person appointed, employed or engaged by the Safety Director (other than a transport safety officer) or an officer of a port s.301 -- 284 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 266 management body, a local port manager or a waterway manager. (2) A person must not— (a) obstruct, hinder, impede or oppose an authorised person who is performing a duty or function, or exercising a power, under this Act or the regulations, or induce or attempt to induce any other person to do so; or (b) prevent or attempt to prevent any other person from assisting an authorised person. Penalty: 60 penalty units. 304 Offence to offer or accept bribes (1) In this section— bribe means anything that provides, or that would provide, a benefit or advantage, whether pecuniary or non-pecuniary to a relevant person; relevant person means a person who is employed or engaged to provide services for the Safety Director, a port management body, a local port manager or a waterway manager. (2) A person must not, directly or indirectly, give or offer to give, cause to be given or attempt to give any bribe to a relevant person for the purpose of influencing the relevant person to perform or exercise his or her duties in a manner that he or she would not usually perform his or her duties. Penalty: 1200 penalty units. (3) A relevant person must not accept a bribe to perform his or her duties in a manner that he or she would not usually perform his or her duties. Penalty: 1200 penalty units. s. 304 -- 285 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 267 (4) An offence against subsection (2) or (3) is an indictable offence. 305 Obtaining licence etc. by false statements (1) A person must not— (a) by any false statement or any misrepresentation or other dishonest means obtain or attempt to obtain any notice, certificate, licence, registration or other document, or any identifying number or general identification mark that is authorised, issued or required by or under this Act; or (b) without lawful authority or excuse possess any notice, certificate, licence, registration or other document so obtained. Penalty: 60 penalty units. (2) Any notice, certificate, licence, registration or other document or identifying mark obtained as specified in subsection (1)(a) is of no effect. 306 Disclosure of information (1) Subject to this section, the Safety Director or a relevant person must not— (a) disclose information gained by the Safety Director or in the course of the delegation, employment or engagement of the relevant person that is information of a personal nature or that has commercial sensitivity for the person about whom it is kept; or (b) use the person's knowledge of any such information. Penalty: 120 penalty units. (2) Subsection (1) does not prevent the disclosure or use of information, in accordance with the regulations (if any)— s. 305 -- 286 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 268 (a) for the purposes of monitoring compliance with a relevant marine safety law and enforcing the requirements of this Act or the regulations; or (b) for the purposes of any legal proceedings arising out of this Act or the regulations or for the purposes of any report of such proceedings; or (c) made at the direction of the Minister; or (d) made in circumstances in which the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious or imminent threat to the life or health of one or more people; or (e) if the disclosure or use is required or authorised by law. (3) In this section, relevant person means a person who is or has been a delegate of or employed by or engaged to provide services for— (a) the Safety Director; or (b) any other person or body engaged to provide services for the Safety Director. 307 Safety Director may vary or cancel permission record to correct error or omission (1) The Safety Director may vary a permission record to correct any error or omission in it and issue a replacement permission record. (2) The Safety Director may cancel a permission record if the permission record was issued or renewed in error. (3) In this section, permission record has the same meaning as it has in section 163. s. 307 -- 287 of 393 -- Part 8.9—Miscellaneous Matters Marine Safety Act 2010 No. 65 of 2010 269 308 Service (1) If under this Act, the regulations, or regulations made under the Port Management Act 1995, a notice, summons or other document is required or permitted to be served on a person, it may be served, in or out of the State— (a) by leaving it on board a vessel in a secure manner, having regard to the circumstances, in a conspicuous position near the controls of the vessel; or (b) by leaving it with a member of the crew of the vessel. (2) If under this Act, the regulations, or regulations made under the Port Management Act 1995, a notice, summons or other document is required to be served on a person in respect of a recreational vessel, it may be served by posting it, addressed to the person, to the registered address, or the residential address of the owner of the vessel. (3) If under this Act, the regulations, or regulations made under the Port Management Act 1995, a notice, summons or other document is required or permitted to be served on the owner or master of a vessel, it may be served by serving it on the agent for the vessel or on the agent for the owner or operator of the vessel. __________________ s. 308 -- 288 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 270 PART 8.10—REGULATIONS Division 1—General regulation-making powers 309 General regulation-making powers (1) The Governor in Council may make regulations for with respect to— (a) the matters and things specified in Schedule 2; (b) prescribing the application and renewal process for granting or issuing a permission; (c) prescribing the requirements to be complied with for the purposes of granting or issuing a permission; (d) prescribing conditions, including the process for varying conditions, of a permission; (e) prescribing information to be provided as part of the process for applying or renewing a permission; (f) prescribing examination requirements (including for the purposes of determining the medical fitness of a person or the person's competency) that must be undertaken for the purposes of a permission; (g) prescribing grounds for suspension or cancellation of a permission; (h) prescribing the information to be included in a permission that is granted or issued; (i) providing for the issue of duplicate or replacement copies of a record of a permission; s. 309 -- 289 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 271 (j) providing for the prohibition or regulation of recreational vessels in State waters based on the subject matter of the Prevention of Collisions Convention within the meaning of Division 5 of Part 3.5; (k) any waters in respect of which a person has been engaged as a harbour master, including regulations as to the entry, departure or movement of any vessels in such waters or any of the following matters— (i) the entering or leaving of those waters by any vessels; (ii) the movement and navigation of any vessels in those waters; (iii) the securing and anchorage of any vessels in those waters; (iv) the taking into any vessel or discharging from any vessel of cargo, stores, fuel, fresh water or water ballast in those waters; (v) the removing of any vessels in those waters; (vi) any other thing for or with respect to the management of the operation of any vessels in those waters; (l) prescribing the application and renewal process for an accreditation to provide a prescribed kind of service and any conditions of that accreditation; (m) requiring notice of, reports and information about, prescribed activities, matters or things to be given to the Safety Director or a transport safety officer; s. 309 -- 290 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 272 (n) the content, manner and form of a notice, reports and information referred to in paragraph (m) to be given to the Safety Director or a transport safety officer; (o) prescribing forms; (p) fees for the purposes of this Act and the refund and waiver of such fees; (q) prescribing offences to be owner onus offences for the purposes of Part 4.7; (r) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) A power conferred by this Act to make regulations may be exercised— (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, as respects the cases in relation to which the power is exercised— (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or provisions for the same case or class of case for different purposes; or (ii) any such provision either unconditionally or subject to any specified condition. s. 309 -- 291 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 273 (3) The regulations may— (a) be of general or limited application; and (b) differ according to differences in time, place or circumstances; and (c) require a matter affected by the regulations to be— (i) in accordance with a specified standard or specified requirement; or (ii) approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies; or (iii) as specified in both subparagraphs (i) and (ii); and (d) apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether— (i) wholly or partially or as amended by the regulations; or (ii) formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or (iii) as formulated, issued, prescribed or published from time to time; and (e) confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies; and (f) provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions s. 309 -- 292 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 274 and either wholly or to such an extent as is specified; and (g) impose a penalty not exceeding 20 penalty units for a contravention of the regulations. (4) If under subsection (3)(d)(iii) a regulation has applied, adopted or incorporated any matter contained in any document, code, standard, rule, specification or method as formulated, issued, prescribed or published from time to time and that document, code, standard, rule, specification or method is at any time amended, until the Safety Director causes notice to be published in the Government Gazette of that amendment the document, code, standard, rule, specification or method is to be taken to have not been so amended. (5) Subsections (3)(d)(iii) and (4) do not apply to— (a) the Uniform Shipping Laws Code; (b) the National Standard for Commercial Vessels; (c) the National Standard for Administration of Marine Safety. Division 2—Fees, rates and charges 310 Fees, rates and charges (1) The Governor in Council may make regulations for or with respect to fees, rates or charges to be imposed— (a) by the Safety Director for the grant or issue of a permission or the supply of equipment, goods or materials; and s. 310 -- 293 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 275 (b) by the Safety Director for the provision of services or the control of navigation or management of vessel movement in State waters outside ports; and (c) by any other person or body that is empowered under this Act to charge fees, rates or charges. (2) The owner, agent, charterer and person in charge of a vessel at the time any fees, rates or charges are imposed under this Act on or in respect of the vessel are jointly and severally liable for those fees, rates or charges. (3) Regulations made under subsection (1), may provide for all or any of the following matters— (a) specific fees, rates and charges; (b) maximum or minimum fees, rates and charges; (c) maximum and minimum fees, rates and charges; (d) ad valorem fees, rates and charges; (e) the payment of fees, rates and charges either generally or under specified conditions or in specified circumstances; (f) the reduction, waiver or refund, in whole or in part, of the fees, rates and charges. (4) If under subsection (3)(f) the Governor in Council provides for a reduction, waiver or refund, in whole or in part, of a fee, rate or charge, the reduction, waiver or refund may be expressed to apply either generally or specifically— (a) in respect of certain matters or transactions or classes of matters or transactions; (b) in respect of certain documents or classes of documents; s. 310 -- 294 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 276 (c) when an event happens; (d) in respect of certain persons or classes of persons; (e) in respect of any combination of such matters, transactions, documents, events or persons— and may be expressed to apply subject to specified conditions or in the discretion of any specified person or body. 311 Fees for waterway managers (1) The Governor in Council may make regulations for or with respect to the fees that may be charged by waterway managers for services provided by waterway managers. (2) Regulations made under subsection (1) may provide for all or any of the following matters— (a) amounts of fees; (b) fixing fees by reference to a maximum or minimum fee or both; (c) the persons who are liable to pay the fees; (d) the exemptions from the requirement to pay fees; (e) requirements as to notices to be given by waterway managers as to the fees. (3) Section 310 does not apply to regulations made under this section. 312 Fee for boating facilities and safety education (1) The Governor in Council may make regulations for or with respect to a fee or other amount to be imposed on licence holders, applicants for licences, persons in whose names vessels are registered or any other class of persons— s. 311 -- 295 of 393 -- Part 8.10—Regulations Marine Safety Act 2010 No. 65 of 2010 277 (a) for the provision and maintenance of boating facilities and services for the public; and (b) for the conduct of boating safety, boating education and boating promotion programs from the public. (2) The person in whose name a vessel is registered must pay in accordance with the regulations any fee imposed by the Governor in Council under this section, unless— (a) the person or vessel is exempted under section 260; or (b) the vessel is a vessel referred to in section 39(3). (3) Any money available for the purposes of this section must be used for the purposes specified in subsection (1) and may, for those purposes, be paid to any person, authority or organisation approved by the Minister. (4) Section 310(3) and (4) apply to and in relation to a fee imposed under this section. __________________ s. 312 -- 296 of 393 -- Part 9.1—Definitions Marine Safety Act 2010 No. 65 of 2010 278 CHAPTER 9—SAVINGS AND TRANSITIONAL PROVISIONS PART 9.1—DEFINITIONS 313 Definitions In this Chapter— commencement day means the day on which section 3 comes into operation; Director has the same meaning as in the Marine Act; general operator licence has the same meaning as in the Marine Act; Marine Act means the Marine Act 1988, as in force immediately before the commencement day; Marine Act vessel means a vessel within the meaning of the Marine Act; Marine Regulations means the Marine Regulations 2009, as in force immediately before the commencement day; personal watercraft endorsement has the same meaning as in the Marine Act; restricted operator licence has the same meaning as in the Marine Act. __________________ s. 313 -- 297 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 279 PART 9.2—OPERATIVE PROVISIONS 314 General transitional provision (1) This Chapter does not affect or take away from the Interpretation of Legislation Act 1984. (2) This Chapter applies despite anything to the contrary in any other provision in this Act. 315 Savings and transitional regulations (1) The Governor in Council may make regulations in relation to matters of a savings or transitional nature consequent on the enactment of this Act and the amendment of the Marine Act and the Transport (Compliance and Miscellaneous) Act 1983 by this Act. (2) A provision of regulations under this section may be retrospective in operation to the commencement day or a day after the commencement day. (3) Regulations under this section have effect despite anything to the contrary in any Act other than this Act or in any subordinate instrument. (4) This section is repealed on 1 July 2017. 316 Hoon boating provisions re-enacted (1) Parts 4.2 and 4.3 re-enact Part 10AA of the Marine Act with certain modifications. (2) Without limiting section 314(1), in declaring that Parts 4.2 and 4.3 re-enact with certain modifications Part 10AA of the Marine Act, this Chapter must not be taken to— (a) limit the operation of any provision of the Interpretation of Legislation Act 1984 relating to the re-enactment; or s. 314 -- 298 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 280 (b) be an exhaustive list of the provisions of Part 10AA of the Marine Act re-enacted by Parts 4.2 and 4.3. 317 Declaration of waterway managers (1) An Order made under section 3(3)(b) of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be— (a) if the Order declares the Director to be a waterway manager, an Order under section 6(1)(a); (b) if the Order declares another person or a body to be a waterway manager, an Order under section 6(1)(b). (2) For the purposes of subsection (1)(a), every reference in an Order referred to in that subsection to the Director is to be read as a reference to the Safety Director. 318 Declaration of vessels An Order made under section 3(3)(c) of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a declaration under section 7. 319 Determinations in relation to requirements to use a pilot taken to be declaration of pilot required waters A determination made under section 65(jc) of the Marine Act that is in force immediately before the commencement day is, on that day, taken to be a declaration under section 250. s. 317 -- 299 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 281 320 Registered vessels A registration of a Marine Act vessel granted under Part 2 of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a registration of a vessel granted under Part 3.1. 321 Applications for registration of vessels An application for the registration of a Marine Act vessel under Part 2 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for registration of a vessel under Part 3.1. 322 Applications for the renewal or transfer of the registration of a vessel (1) An application for the renewal of the registration of a Marine Act vessel under Part 2 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for the renewal of the registration of a vessel under Part 3.1. (2) An application for the transfer of the registration of a Marine Act vessel under Part 2 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for the transfer of the registration of a vessel under Part 3.1. 323 Suspensions of registration of vessels (1) A suspension of the registration of a Marine Act vessel under section 11 of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a suspension under Part 4.6. s. 320 -- 300 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 282 (2) On the day after the day that suspension ends, the registration of a Marine Act vessel to which it relates is taken to be a registration of a vessel granted under Part 3.1. 324 Processes for suspensions of registrations of vessels (1) This section applies if— (a) the Director has, before the commencement day, commenced a process to suspend the registration of a Marine Act vessel under section 11 of the Marine Act and the Marine Regulations; and (b) the registration has not been suspended in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the suspension of the registration in accordance with that Act and those regulations as if they were in force. (3) A suspension of a registration of a vessel to which this section applies is, on that suspension taking effect, taken to be a suspension under Part 4.6. (4) To avoid doubt, section 320 applies to a registration of a vessel to which this section applies. 325 Processes for cancellations of registrations of vessels (1) This section applies if— (a) the Director has, before the commencement day, commenced a process to cancel the registration of a Marine Act vessel under section 11 of the Marine Act and the Marine Regulations; and (b) the registration has not been cancelled in accordance with that process before that day. s. 324 -- 301 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 283 (2) On and after the commencement day, the Safety Director must complete the process for the cancellation of the registration in accordance with that Act and those regulations as if they were in force. (3) If the Safety Director decides to cancel the registration of the vessel, the registration of the vessel to which this section relates, is taken to be cancelled on the day the decision takes effect. (4) To avoid doubt, section 320 applies to a registration of a vessel to which this section applies. 326 Prohibitions in relation to operation of particular vessels (1) A direction under section 14(1) of the Marine Act that is in effect immediately before the commencement day, is on that day, taken to be a direction made under section 269(1). (2) A direction under section 14(2) of the Marine Act that is in effect immediately before the commencement day, is on that day, taken to be a direction made under section 269(3). 327 Operator licences (1) A general operator licence (within the meaning of the Marine Act) that is in effect immediately before the commencement day is, on that day, taken to be a general marine licence. (2) A restricted operator licence (within the meaning of the Marine Act) that is in effect immediately before the commencement day is, on that day, taken to be a restricted marine licence. s. 326 -- 302 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 284 328 Personal watercraft endorsements An endorsement on a general operator licence (within the meaning of the Marine Act) made under section 118 of that Act that is in effect immediately before the commencement day— (a) is on that day, taken to be an endorsement under section 55 on the marine licence to which it relates; and (b) to avoid doubt, expires on the same day as that marine licence expires. Note In relation to general operator licences, see section 327(1). 329 Applications for operator licences (1) An application for the granting of a general operator licence made under section 116 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for a general marine licence under section 53. (2) An application for the granting of a restricted operator licence made under section 117 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for a restricted marine licence under section 54. 330 Applications for personal watercraft endorsements An application for the making of a personal watercraft endorsement under section 118 of the Marine Act in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for an endorsement under section 55. s. 328 -- 303 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 285 331 Renewals of operator licences (1) An application for the renewal of a general operator licence made under regulation 708 of the Marine Regulations in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for the renewal of a general marine licence to which section 53(4) applies. (2) An application for the renewal of a restricted operator licence made under regulation 708 of the Marine Regulations in respect of which the Director has not made a decision before the commencement day is, on and after that day, taken to be an application for the renewal of a restricted marine licence to which section 54(4) applies. 332 Variations to operator licences on initiative of Director (1) This section applies if— (a) the Director has before the commencement day, commenced a process to vary— (i) a general operator licence or a condition on a general operator licence under section 116(5) or 119 of the Marine Act and the Marine Regulations; or (ii) a restricted operator licence (within the meaning of the Marine Act) or a condition on a restricted operator licence under section 117(5) or 119 of that Act and the Marine Regulations; and s. 331 -- 304 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 286 (b) the licence or condition has not been varied in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the variation of the general operator licence or restricted operator licence or condition on the general operator licence or restricted operator licence, as the case requires, in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), complete the process includes any internal review under regulation 738 of the Marine Regulations if applied for. (4) A variation that is made as provided under this section is, on the day that variation takes effect, taken to be a variation of the general marine licence to which the variation relates. Note See also section 327. (5) A variation that is made as provided under this section is, on the day that variation takes effect, taken to be a variation of the restricted marine licence to which the variation relates. Note See also section 327. (6) A condition on a general operator licence varied as provided under this section is, on that variation taking effect, taken to be a condition on a general marine licence to which the variation relates. Note See also section 327. (7) A condition on a restricted operator licence varied as provided under this section is, on that variation taking effect, taken to be a condition on a s. 332 -- 305 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 287 restricted marine licence to which the variation relates. Note See also section 327. 333 Variations to personal watercraft endorsements on application by holder of a personal watercraft endorsement (1) This section applies if— (a) the holder of an operator licence has, before the commencement day, applied to the Director for a variation to a personal watercraft endorsement or a condition on a personal watercraft endorsement under section 118(5) or 119 of the Marine Act and the Marine Regulations; and (b) the Director has not made a decision in respect of the application before that day. (2) On and after the commencement day, the Safety Director must make a decision in respect of the application in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), make a decision includes make a decision on an internal review under regulation 738 of the Marine Regulations if applied for. (4) A variation of a personal watercraft endorsement or to a condition of a personal watercraft endorsement that is made as provided under this section is, on the day that variation takes effect, taken to be a variation of the licence endorsement on the marine licence to which the endorsement relates. Note See also sections 327 and 328. s. 333 -- 306 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 288 334 Variations to personal watercraft endorsements on initiative of Director (1) This section applies if— (a) the Director has commenced a process to vary a personal watercraft endorsement or a condition on a personal watercraft endorsement under section 118(5) or 119 of the Marine Act and the Marine Regulations; and (b) the endorsement or condition has not been varied in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the variation of the personal watercraft endorsement or condition of a personal watercraft endorsement in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), complete the process includes any internal review under regulation 738 of the Marine Regulations if applied for. (4) A variation of a personal watercraft endorsement or to a condition of a personal watercraft endorsement that is made as provided under this section is, on the day that variation takes effect, taken to be a variation of the licence endorsement on the marine licence to which the endorsement relates. Note See also sections 327 and 328. s. 334 -- 307 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 289 335 Requests for cancellation of personal watercraft endorsements (1) This section applies if— (a) the holder of an operator licence has, before the commencement day, applied to the Director for the cancellation of a personal watercraft endorsement regulation 732 of the Marine Regulations; and (b) the Director has not made a decision in respect of the application before that day. (2) On and after the commencement day, the Safety Director must make a decision in respect of the application in accordance with those regulations as if they were in force. (3) In subsection (2), make a decision includes make a decision on an internal review under regulation 738 of the Marine Regulations if applied for. (4) If the Safety Director decides to cancel the personal watercraft endorsement— (a) the decision is taken to be a decision to cancel the licence endorsement on the marine licence to which section 328 applies; and (b) the licence endorsement is, on the day that decision takes effect, cancelled; and (c) that cancellation is taken to be a cancellation under Part 4.6. Note See also section 327. s. 335 -- 308 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 290 336 Suspension of operator licences (1) A suspension of an operator licence under section 119 of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a suspension under Part 4.6. (2) On the day after the day that suspension ends, the operator licence to which the suspension relates is taken to be a marine licence. 337 Processes for suspensions of operator licences (1) This section applies if— (a) the Director has, before the commencement day, commenced a process to suspend an operator licence under section 119 of the Marine Act and the Marine Regulations; and (b) that licence has not been suspended in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the suspension of that licence in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), complete the process includes any internal review under regulation 738 of the Marine Regulations if applied for. (4) If the Safety Director decides, or confirms his or her decision following internal review, to suspend the operator licence— (a) the decision is taken to be a decision to suspend the marine licence to which section 327 applies; and (b) the marine licence is, on the day that decision takes effect, suspended; and (c) that suspension is taken to be a suspension under Part 4.6. s. 336 -- 309 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 291 338 Processes for cancellations of operator licences (1) This section applies if— (a) the Director has, before the commencement day, commenced a process to cancel an operator licence under section 119 of the Marine Act and the Marine Regulations; and (b) that licence has not been cancelled in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the cancellation of that licence in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), complete the process includes any internal review under regulation 738 of the Marine Regulations if applied for. (4) If the Safety Director decides, or confirms his or her decision following internal review, to cancel the operator licence— (a) the decision is taken to be a decision to cancel the marine licence to which section 327 applies; and (b) the marine licence is, on the day that decision takes effect, cancelled; and (c) that cancellation is taken to be a cancellation under Part 4.6. 339 Processes for revocation of personal watercraft endorsements (1) This section applies if— (a) the Director has, before the commencement day, commenced a process to revoke a personal watercraft endorsement under section 119 of the Marine Act and the Marine Regulations; and s. 338 -- 310 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 292 (b) that endorsement has not been revoked in accordance with that process before that day. (2) On and after the commencement day, the Safety Director must complete the process for the revocation of that endorsement in accordance with that Act and those regulations as if they were in force. (3) In subsection (2), complete the process includes any internal review under regulation 738 of the Marine Regulations if applied for. (4) If the Safety Director decides, or confirms his or her decision following internal review, to revoke the personal watercraft endorsement— (a) the decision is taken to be a decision to cancel the licence endorsement on the marine licence to which section 328 applies; and (b) the licence endorsement is, on the day that decision takes effect, cancelled; and (c) that cancellation is taken to be a cancellation under Part 4.6. Note See also section 327. 340 Court suspensions of operator licences The suspension of an operator licence (within the meaning of the Marine Act) under section 121 of that Act by a court that is in effect immediately before the commencement day is, on that day, taken to be a suspension under section 171. s. 340 -- 311 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 293 341 Disqualifications from obtaining operator licences (1) This section applies if— (a) before the commencement day— (i) a person's operator licence (within the meaning of the Marine Act) has been suspended under that Act or cancelled under section 121 of that Act; and (ii) the person is disqualified from obtaining a further licence by operation of section 122 of that Act or by a court under section 121(1) of that Act; and (b) the period of disqualification ends after the commencement day. (2) The person is disqualified from obtaining a marine licence for the period commencing on the commencement day and ending on the day the period of disqualification ends. 342 Waterway rules A notice made under section 15(1) of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be waterway rules. 343 Boating activities A notice made under section 16 of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a declaration under section 203. 344 Harbour master identity cards An identity card issued to a harbour master under section 26HC of the Marine Act before the commencement day is on that day taken to be an identity card issued under section 221. s. 341 -- 312 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 294 345 Harbour master licences (1) A harbour master licence (within the meaning of the Marine Act) that is in effect immediately before the commencement day is, on that day, taken to be a harbour master licence under this Act. (2) To avoid doubt, a harbour master licence to which subsection (1) applies remains in effect unless suspended or cancelled under this Act. 346 Applications for harbour master licences An application for a harbour master licence under the Marine Regulations that is not determined by the Director before the commencement day is, on and after that day, taken to be an application under Part 6.2. 347 Authorisation of assistant harbour masters An authorisation under section 26B(1), (2), (3) or (4) of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be an authorisation under section 229(1), (2), (3) or (4), as the case requires. 348 Written directions of harbour masters A written direction given under section 26E of the Marine Act that is in effect immediately before the commencement day is, on that day, taken to be a written direction under section 232. 349 Pilotage services provider registration (1) A pilotage services provider who was registered under section 26K of the Marine Act and whose registration is in effect immediately before the commencement day is, on that day, taken to be registered under section 241. s. 345 -- 313 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 295 (2) In addition, a certificate of registration issued to a person referred to in subsection (1) under section 26N of the Marine Act is, on the commencement day, taken to be a certificate of registration issued under section 243. 350 Register of pilotage services providers The register kept under section 26O of the Marine Act is, on and after the commencement day, taken to be the register under section 244. 351 Pilot licences (1) A pilot licence (within the meaning of the Marine Regulations) that is in effect immediately before the commencement day is, on that day, taken to be a pilot licence under this Act. (2) To avoid doubt, a pilot licence to which subsection (1) applies remains in effect unless sooner suspended or cancelled under this Act. 352 Applications for pilot licences An application for a pilot licence under the Marine Regulations that is not determined by the Director before the commencement day is, on and after that day, taken to be an application under Division 3 of Part 7.2. 353 Pilot exemptions A pilot exemption (within the meaning of the Marine Regulations) that is in effect immediately before the commencement day is, on that day, taken to be a pilot exemption under this Act. 354 Applications for pilot exemptions An application for a pilot exemption under the Marine Regulations that is not determined by the Director before the commencement day is, on and after that day, taken to be an application under Division 4 of Part 7.2. s. 350 -- 314 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 296 355 Local knowledge certificates A local knowledge certificate (within the meaning of the Marine Regulations) that is in effect immediately before the commencement day is, on that day, taken to be a local knowledge certificate under this Act. 356 Applications for local knowledge certificates An application for a local knowledge certificate under the Marine Regulations that is not determined by the Director before the commencement day is, on and after that day, taken to be an application under Division 2 of Part 3.4. 357 Specified standards of the Director (1) In this section a specified standard means— (a) a standard, that is in force immediately before the commencement day, made under sections 26S(2) and 65(gb) of the Marine Act; (b) a standard, that is in force immediately before the commencement day, made under section 65(a) of the Marine Act; (c) a standard, that is in force immediately before the commencement day, made under section 65(b) of the Marine Act; (d) a standard, that is in force immediately before the commencement day, made under section 65(g) of the Marine Act; (e) a standard, that is in force immediately before the commencement day, made under section 65(i) of and item 18B of Schedule 4 to the Marine Act; s. 355 -- 315 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 297 (f) a standard, that is in force immediately before the commencement day, made under section 65(j) of and item 18G of Schedule 4 to the Marine Act; (g) a standard, that is in force immediately before the commencement day, made under section 65(je) of the Marine Act. (2) On the commencement day, a specified standard is taken to be a standard made by the Safety Director under section 258 and Schedule 1. 358 Specified approvals and determinations of the Director (1) In this section a specified approval or determination means— (a) an approval, that is in force immediately before the commencement day, made under section 65(jf) of the Marine Act; (b) a determination, that is in force immediately before the commencement day, made under section 65(jd) of the Marine Act; (c) a determination, that is in force immediately before the commencement day, made under item 9 of Schedule 4 to the Marine Act; (d) a determination, that is in force immediately before the commencement day, made under item 15 of Schedule 4 to the Marine Act; (e) a determination, that is in force immediately before the commencement day, made under item 15A of Schedule 4 to the Marine Act; (f) a determination, that is in force immediately before the commencement day, made under item 16 of Schedule 4 to the Marine Act; s. 358 -- 316 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 298 (g) a determination, that is in force immediately before the commencement day, made under item 18 of Schedule 4 to the Marine Act. (2) On the commencement day, a specified approval or determination is taken to be, as the case requires, an approval or determination made by the Safety Director under section 258 and Schedule 1. 359 Exemptions of Director An exemption under section 67 of the Marine Act that is in effect immediately before the commencement day, is on that day, taken to be an exemption under section 260. 360 Certificates of competency A certificate of competency issued under section 99C of the Marine Act that is in force immediately before the commencement day is, on that day, taken to be a certificate of competency under section 80. 361 Applications for certificates of competency An application for a certificate of competency under the Marine Regulations that is not determined by the Director before the commencement day is, on and after that day, taken to be an application under Division 1 of Part 3.4. 362 Certificates of survey A certificate of survey issued under section 99E of the Marine Act that is in force immediately before the commencement day is, on that day, taken to be— (a) a safe construction certificate in respect of that part of the certificate of survey that deals with the matters a safe construction certificate would deal with; s. 359 -- 317 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 299 (b) a safe operation certificate in respect of that part of the certificate of survey that deals with the matters a safe operation certificate would deal with. 363 Investigations by Director (1) This section applies if the Director has commenced an investigation under section 84 of the Marine Act before the commencement day that has not been completed before the commencement day. (2) Despite the repeal of section 84 of the Marine Act, the Director may complete that investigation as if that section 84 were in force. (3) In addition, sections 84A to 85 of the Marine Act apply to the investigation as if they were in force. 364 Investigations by inspectors (1) This section applies if an inspector (within the meaning of the Marine Act) has commenced an investigation under section 82D of the Marine Act before the commencement day and in respect of which the inspector has not reported to the Director in accordance with that section before the commencement day. (2) Despite the repeal of section 82D of the Marine Act, the inspector may complete that investigation as if section 82D were in force, and report to the Safety Director on that investigation. (3) In addition, sections 83 to 83D of the Marine Act apply to the investigation as if they were in force. (4) For the purposes of this section, the inspector remains an inspector until he or she reports to the Safety Director on that investigation. s. 363 -- 318 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 300 365 Improvement notices An improvement notice served under section 85AA of the Marine Act before the commencement day that is in effect immediately before that day is, on that day, taken to be an improvement notice served under section 228ZZC of the Transport (Compliance and Miscellaneous) Act 1983. 366 Prohibition notices A prohibition notice served under section 85AH of the Marine Act before the commencement day that is in effect immediately before that day is, on that day, taken to be a prohibition notice served under section 228ZZJ of the Transport (Compliance and Miscellaneous) Act 1983. 367 Internal reviews in relation to applications (1) This section applies if— (a) an application for internal review of a decision of the Director has been made under regulation 738 of the Marine Regulations before the commencement day in relation to a refusal of an application— (i) for an operator licence; or (ii) for a personal watercraft endorsement on an operator licence; or (iii) to vary or renew an operator licence or a personal watercraft endorsement on an operator licence; and (b) the internal review as provided under that regulation has not been completed before the commencement day. s. 365 -- 319 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 301 (2) On and after the commencement day, the internal review must be completed in accordance with the Marine Act and Marine Regulations as if they were in force and for that purpose— (a) a reference in regulation 738 of the Marine Regulations to the Director is to be read as a reference to the Safety Director; and (b) section 329, 330, 331, 332 or 333 (as the case requires) does not apply to the relevant application while the internal review is on foot. (3) If the effect of the decision of the Safety Director is that the decision to refuse the application is revoked— (a) the application is taken to be an application to which section 329, 330, 331 or 332 (as the case requires) applies; and (b) section 329, 330, 331 or 332 (as the case requires) applies as if a reference in that section to the commencement day were a reference to the day on which the decision of the Safety Director takes effect. 368 Appeals commenced in relation to refusal of applications in relation to licences and endorsements (1) This section applies if— (a) a proceeding has been commenced before the commencement day in the Magistrates' Court under section 125 of the Marine Act in relation to a decision of the Director to refuse an application— (i) for an operator licence; or (ii) for a personal watercraft endorsement on an operator licence; or s. 368 -- 320 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 302 (iii) to vary or renew an operator licence or a personal watercraft endorsement on an operator licence; and (b) that proceeding has not been finally determined before that day. (2) Despite anything to the contrary in this Act, the proceeding must be heard and determined as if the Marine Act and Marine Regulations were in force. (3) If the court determines that the application should not be refused, on the day the determination of the court takes effect— (a) the application is taken to be an application to which section 329, 330, 331 or 332 (as the case requires) applies; and (b) section 329, 330, 331 or 332 (as the case requires) applies as if a reference in that section to the commencement day were a reference to the day on which that determination takes effect. 369 Appeals commenced in relation to decisions to suspend or cancel operator licences or revoke endorsements (1) This section applies if— (a) a proceeding has been commenced before the commencement day in the Magistrates' Court under section 125 of the Marine Act in relation to a decision to— (i) suspend or cancel an operator licence; or (ii) revoke a personal watercraft endorsement; and (b) that proceeding has not been finally determined before that day. s. 369 -- 321 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 303 (2) Despite anything to the contrary in this Act, the proceeding must be heard and determined as if the Marine Act and Marine Regulations were in force. (3) If the effect of the determination of the Magistrates' Court is that the operator licence is suspended— (a) the determination of the court is taken to be a determination to suspend the marine licence to which section 327 applies; and (b) the marine licence is, on the day that determination takes effect, taken to be suspended for the period determined by the court. (4) If the effect of the determination of the Magistrates' Court is that the operator licence is cancelled— (a) the determination of the court is taken to be a determination to cancel the marine licence to which section 327 applies; and (b) the marine licence is, on the day that determination takes effect, taken to be cancelled. (5) If the effect of the determination of the Magistrates' Court is that the personal watercraft endorsement is revoked— (a) the determination of the court is taken to be a determination to cancel the licence endorsement on the marine licence to which section 328 applies; and (b) the licence endorsement is, on the day that decision takes effect, taken to be cancelled. Note See also section 327. s. 369 -- 322 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 304 370 Appeals commenced in relation to decisions to vary operator licences or vary conditions on licences or endorsements (1) This section applies if— (a) a proceeding has been commenced before the commencement day in the Magistrates' Court under section 125 of the Marine Act in relation to a decision to— (i) impose or vary a condition on an operator licence or personal watercraft endorsement; or (ii) vary an operator licence; and (b) that proceeding has not been finally determined before that day. (2) Despite anything to the contrary in this Act, the proceeding must be heard and determined as if the Marine Act and Marine Regulations were in force. (3) If the effect of the determination of the Magistrates' Court is that a condition be imposed on the operator licence— (a) the determination of the court is taken to be a determination to impose a condition on the marine licence to which section 327 applies; and (b) the marine licence is, on the day that determination takes effect, taken to be varied to include the condition imposed. (4) If the effect of the determination of the Magistrates' Court is that a condition on the operator licence be varied— (a) the determination of the court is taken to be a determination to vary the condition of the marine licence to which section 327 applies; and s. 370 -- 323 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 305 (b) the condition of the marine licence is, on the day that determination takes effect, taken to be varied in accordance with that determination. (5) If the effect of the determination of the Magistrates' Court is that a condition be imposed on the personal watercraft endorsement— (a) the determination of the court is taken to be a determination to impose a condition on the licence endorsement on the marine licence to which section 328 applies; and (b) the licence endorsement is, on the day that determination takes effect, taken to be varied to include the condition imposed. Note See also section 327. (6) If the effect of the determination of the Magistrates' Court is that a condition on the personal watercraft endorsement be varied— (a) the determination of the court is taken to be a determination to vary the condition of the licence endorsement on the marine licence to which section 328 applies; and (b) the condition of the licence endorsement is, on the day that determination takes effect, taken to be varied in accordance with that determination. Note See also section 327. (7) If the effect of the determination of the Magistrates' Court is that an operator licence be varied— s. 370 -- 324 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 306 (a) the determination of the court is taken to be a determination to vary the marine licence to which section 327 applies; and (b) the marine licence is, on the day that determination takes effect, taken to be varied in accordance with that determination. 371 Appeals against disqualifications by order of a court (1) This section applies if— (a) a proceeding has been commenced before the commencement day under section 126 of the Marine Act by a person or child who is disqualified from obtaining an operator licence by order of the Magistrates' Court or the Children's Court; and (b) that proceeding has not been finally determined before that day. (2) Despite anything to the contrary in this Act, the proceeding must be heard and determined as if the Marine Act and Marine Regulations were in force. (3) If the effect of the decision of the court hearing the appeal is that the person or child is disqualified from obtaining an operator licence, that person is taken to be disqualified from obtaining a marine licence for the period of that disqualification. 372 Appeals against cancellation or suspension of operator licence by order of a court (1) This section applies if— (a) a proceeding has been commenced before the commencement day under section 126 of the Marine Act by a person or child whose operator licence has been cancelled or suspended by order of the Magistrates' Court or the Children's Court; and s. 371 -- 325 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 307 (b) that proceeding has not been finally determined before that day. (2) Despite anything to the contrary in this Act, the proceeding must be heard and determined as if the Marine Act and Marine Regulations were in force. (3) If the effect of the decision of the court hearing the appeal is that the person's or child's operator licence is suspended— (a) the order of the court is taken to be an order to suspend the marine licence to which section 327 applies; and (b) the marine licence is, on the day that order takes effect, taken to be suspended for the period determined by the court. (4) If the effect of the decision of the court hearing the appeal is that the person's or child's operator licence is cancelled— (a) the order of the court is taken to be an order to cancel the marine licence to which section 327 applies; and (b) the marine licence is, on the day that order takes effect, taken to be cancelled. 373 Delegations of waterway managers On the commencement day every instrument of delegation made under section 112 of the Marine Act is taken to be an instrument of delegation made under section 217. s. 373 -- 326 of 393 -- Part 9.2—Operative Provisions Marine Safety Act 2010 No. 65 of 2010 308 374 References to Director to be read as references to Safety Director On and after the commencement day, every reference in a document whatsoever made or created under the Marine Act or Marine Regulations to the Director is to be read as the Safety Director unless the context otherwise requires. __________________ s. 374 -- 327 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 309 CHAPTER 10—AMENDMENTS TO OTHER ACTS PART 10.1—MARINE ACT 1988 Division 1—Change of name of Act and amendment of preliminary provisions 375 Change of name of Act (1) In the title to the Marine Act 1988 for "Marine Act" substitute "Marine (Drug, Alcohol and Pollution Control) Act". (2) At the end of section 3 of the Marine Act 1988 insert— "(6) On and from the commencement of section 375 of the Marine Safety Act 2010, a reference to the Marine Act 1988 in any Act (other than in the Marine Safety Act 2010) or in any other instrument made under any Act or in any other document of any kind, must be read and construed as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988, unless the context otherwise requires.". 376 Section 1 substituted—Purposes of Act For section 1 of the Marine Act 1988 substitute— "1 Purpose The purpose of this Act is to provide for safe marine operations in Victoria by— (a) prohibiting masters and other persons involved in vessel operations from being under the influence of prescribed drugs or impaired by alcohol when See: Act No. 52/1998. Reprint No. 7 as at 12 December 2007 and amending Act Nos 17/2009, 68/2009, 93/2009, 6/2010, 13/2010, 19/2010 and 30/2010. LawToday: www. legislation. vic.gov.au s. 375 -- 328 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 310 undertaking those vessel operations; and (b) allocating roles, responsibilities and liabilities to the Director and others to ensure there is a capacity and obligation to respond to marine incidents that have the potential to result in pollution.". 377 Definitions (1) In section 3(1) of the Marine Act 1988— (a) the definitions of Australian Builders Plate Standard, Australian fishing vessel, certificate of competency, certificate of survey, channel operator, commercial marine operations, fishing vessel, government vessel, harbour master, harbour master licence, licensed harbour master, local authority, local port, mandatory marine safety decision, marine infringement, navigation aid, operator licence, pilotage services, pilot exempt master, port, port corporation, port of Melbourne, Port of Melbourne Corporation, port of Melbourne waters, port waters, regulated recreational vessel, relevant marine safety law, trading vessel, Uniform Shipping Laws Code and Victorian Regional Channels Authority are repealed; (b) in the definition of Director of the Victorian Institute of Forensic Medicine, for "Coroners Act 1985" substitute "Victorian Institute of Forensic Medicine Act 1985"; (c) for the definition of regulated hire and drive vessel substitute— "regulated hire and drive vessel has the same meaning as it has in the Marine Safety Act 2010;"; s. 377 -- 329 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 311 (d) for the definition of waterway manager substitute— "waterway manager has the same meaning as it has in the Marine Safety Act 2010."; (e) insert the following definitions— "marine incident has the same meaning as it has in the Marine Safety Act 2010; marine licence has the same meaning as it has in the Marine Safety Act 2010; registered recreational vessel has the same meaning as it has in the Marine Safety Act 2010;". (2) Sections 3(2), 3(3)(b) and 3(3A) of the Marine Act 1988 are repealed. Division 2—Amendment of Part 4 378 Interpretation (1) Section 27(1AA) of the Marine Act 1988 is repealed. (2) In section 27(1A) of the Marine Act 1988, for "being in charge" substitute "being involved in the operation". (3) For section 27(1AAA) of the Marine Act 1988 substitute— "(1AAA) A person is taken to be the master of a vessel under way, if that person is accompanying a person who is in control of the vessel, for the purpose of enabling the person who is in control of the vessel to comply with— (a) any condition of the marine licence of the person; or s. 378 -- 330 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 312 (b) any requirement of regulations made under this Act or the Marine Safety Act 2010— that the person be accompanied by a licensed master while in control of the vessel.". (4) For section 27(3) of the Marine Act 1988 substitute— "(3) In this Part— operate, in relation to a vessel, means to facilitate or control the movement or navigation of a vessel or a thing connected to a vessel; registered mooring means any floating fixture, marker, pile, buoy, cable or chain attached to anchors or a weight the position of which is either registered with, or recorded by, the local port manager, port management body or waterway manager and compliant with any applicable rules of the local port manager, port management body or waterway manager; vessel under way includes any period when a vessel is being secured, moored or retrieved from the water but does not include a vessel that is— (a) properly made fast on a registered mooring; or (b) made fast to the shore; or (c) aground; or (d) ashore.". s. 378 -- 331 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 313 379 Offences involving alcohol or other drugs (1) In section 28(1) of the Marine Act 1988— (a) in paragraphs (a) and (b), for "is in charge of a vessel under way" substitute "operates a vessel under way"; (b) in paragraph (e), for "in charge of" (where first occurring) substitute "involved in the operation of"; (c) in paragraph (e)(ii), for "after being in charge of" substitute "after operating"; (d) in paragraph (f), for "in charge of" (wherever occurring) substitute "involved in the operation of". (2) In sections 28(2) and 28(3) of the Marine Act 1988 omit ", other than an accompanying operator offence,". (3) Section 28(3A), (6) and (7) of the Marine Act 1988 are repealed. 380 Provisions about cancellation and disqualification (1) In section 28A(1) of the Marine Act 1988— (a) for "regulated recreational vessel" substitute "registered recreational vessel"; (b) for "an operator licence" (wherever occurring) substitute "a marine licence". (2) In section 28A(2) of the Marine Act 1988— (a) for "regulated recreational vessel" substitute "registered recreational vessel"; (b) for "an operator licence" (wherever occurring) substitute "a marine licence". s. 379 -- 332 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 314 381 Immediate suspension of operator licence in certain circumstances (1) In the heading to section 28C of the Marine Act 1988, for "operator licence" substitute "marine licence". (2) In section 28C(1) of the Marine Act 1988— (a) for "in charge" substitute "the master"; (b) for "regulated recreational vessel" substitute "registered recreational vessel"; (c) for "operator licence" substitute "marine licence". (3) In section 28C(3) of the Marine Act 1988, for "operator licence" substitute "marine licence". 382 Appeal to court against suspension of operator licence (1) In the heading to section 28D of the Marine Act 1988, for "operator licence" substitute "marine licence". (2) In section 28D(6) of the Marine Act 1988— (a) for "operator licence" (where first occurring) substitute "marine licence"; (b) for "an operator licence" substitute "a marine licence". 383 Section 29 substituted For section 29 of the Marine Act 1988 substitute— "29 Preliminary breath tests (1) A member of the police force may at any time require— (a) any person he or she finds to be master of a vessel; or s. 381 -- 333 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 315 (b) any person involved in operating a vessel who has been requested or signalled to go to a preliminary breath testing station under section 30(3); or (c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours been the master of a vessel when it was involved in a marine incident; or (d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel when it was involved in a marine incident, if it has not been established to the satisfaction of the member of the police force which of the occupants was the master of the vessel when it was involved in the marine incident— to undergo a preliminary breath test by a prescribed device. (2) A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the member of the police force. (3) A person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person last operated, was an occupant of, or was the master of, a vessel under way.". 384 Preliminary breath testing stations In section 30(3) of the Marine Act 1988, for "in charge of" substitute "operating". s. 384 -- 334 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 316 385 Breath analysis (1) In section 31(1), (2), (6) and (9A) of the Marine Act 1988, for "in charge" substitute "the master". (2) In section 31(12C) of the Marine Act 1988, for "Marine Act 1988" (wherever occurring) substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988". 386 Blood samples taken in certain cases (1) In section 31A(2) of the Marine Act 1988, for "an accident" substitute "a marine incident". (2) In section 31A(2A) of the Marine Act 1988— (a) for "regulated recreational" substitute "registered recreational"; (b) for "an operator licence" (wherever occurring) substitute "a marine licence". (3) In section 31A(3)(c) of the Marine Act 1988, for "not in charge of any vessel involved in the accident" substitute "not the master of, or involved in operating, any vessel involved in the marine incident". 387 Evidentiary provisions—blood tests In section 32(2)(c) of the Marine Act 1988, for "in charge" substitute "the master". 388 Evidentiary provisions—breath tests In section 33(2AA) of the Marine Act 1988, for "Marine Act 1988" (wherever occurring) substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988". 389 Avoidance of certain provisions in contracts of insurance In section 33A(1) of the Marine Act 1988, for "person in charge" substitute "master". s. 385 -- 335 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 317 Division 3—Consequential amendments 390 Repeal of various parts and provisions (1) Parts 2, 3, 3A, 3B and 6 of the Marine Act 1988 are repealed. (2) Sections 60, 61 and 62 of the Marine Act 1988 are repealed. 391 Part 8 consequential amendments (1) The heading to Division 1 of Part 8 of the Marine Act 1988 is repealed. (2) Sections 66A, 66B, 66C, 67, 70 and 71 of the Marine Act 1988 are repealed. (3) Section 65(a), (b), (c), (d), (f), (g), (ga), (gb), (h), (i), (j), (ja), (jc), (jd), (je), (jf), (jh) and (k) of the Marine Act 1988 are repealed. (4) In section 65(jb) of the Marine Act 1988, for "Plan; and" substitute "Plan.". (5) Divisions 2, 2A, 3, 4, 5, 6 and 7 of Part 8 of the Marine Act 1988 are repealed. 392 Part 9 consequential amendments (1) Sections 85A, 86, 86A, 87, 88, 89, 89A, 90, 91, 91A, 92, 92A, 93, 94, 95, 96, 97, 98, 99, 99A, 99B, 99C, 99D, 99E, 99F, 100, 101A, 102, 103, 104, 106, 107, 107AA, 108, 108A and 109 of the Marine Act 1988 are repealed. (2) Sections 105(1A), 105(5) and 110 of the Marine Act 1988 are repealed. 393 Further consequential amendments (1) Parts 10, 10AA, 10A and 11 of the Marine Act 1988 are repealed. (2) Schedules 1, 2 and 3 to the Marine Act 1988 are repealed. s. 390 -- 336 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 318 (3) In Schedule 4 to the Marine Act 1988— (a) the heading preceding item 1 and items 1, 2 and 3 are repealed; (b) the heading preceding item 7 and items 7, 8 and 8AA are repealed; (c) the heading preceding item 8A and items 8A and 8B are repealed; (d) the heading preceding item 8C and items 8C, 8D, 8E and 8F are repealed; (e) the heading preceding item 9 and item 9 are repealed; (f) the heading preceding item 10 and items 10, 11, 12 and 13 are repealed; (g) the heading preceding item 14 and items 14 and 15 are repealed; (h) the heading preceding item 16 and items 16, 17, 18, 18A, 18B, 18C, 18D, 18E, 18F, 18G and 18H are repealed. (4) In Schedule 5 to the Marine Act 1988— (a) the heading preceding item 1 and items 1 to 8 are repealed; (b) the heading preceding item 17 and items 17 to 23 are repealed; (c) the heading preceding item 23A and items 23A to 23E are repealed; (d) the heading preceding item 24 and items 24 and 25 are repealed; (e) the heading preceding item 26 and items 26 and 27 are repealed; (f) the heading preceding item 28 and items 28 to 28D are repealed; s. 393 -- 337 of 393 -- Part 10.1—Marine Act 1988 Marine Safety Act 2010 No. 65 of 2010 319 (g) the heading preceding item 29 and items 29 to 34 are repealed; (h) the heading preceding item 35 and items 35 and 36 are repealed; (i) the heading preceding item 45 and items 45 to 59 are repealed; (j) the heading preceding item 60 and items 60 to 62 are repealed; (k) the heading preceding item 63 and item 63 are repealed; (l) all headings and items following item 63A are repealed. (5) Schedule 6 to the Marine Act 1988 is repealed. __________________ s. 393 -- 338 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 320 PART 10.2—TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT 1983 394 Definitions (1) In section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983, in the definition of relevant transport safety law, before paragraph (c) insert— "(bb) any relevant marine safety law;". (2) Insert the following definitions in section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983— "mandatory marine safety decision means— (a) a decision of the Safety Director under this Act to determine— (i) standards for navigation aids; or (ii) standards for dredging and channel maintenance; (b) a decision of the Safety Director or transport safety officer to— (i) to serve an improvement notice; or (ii) amend an improvement notice under section 228ZZF; or (iii) serve a prohibition notice; or (iv) amend a prohibition notice under section 228ZZL; relevant marine safety law has the same meaning as in the Marine Safety Act 2010;". See: Act No. 9921. Reprint No. 15 as at 1 July 2010 and amending Act Nos 13/2009, 93/2009 and 16/2010. LawToday: www. legislation. vic.gov.au s. 394 -- 339 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 321 395 Amendment of section 82C—Application of definitions to this Part In section 82C(2) of the Transport (Compliance and Miscellaneous) Act 1983, for "section 3(1) of the Marine Act 1988" substitute "section 3(1) of the Marine Safety Act 2010". 396 Amendment of section 84 and repeal of section 84A—Specific investigation powers (1) In section 84 of the Transport (Compliance and Miscellaneous) Act 1983— (a) in the heading to the section, after "matter" insert "or marine safety matters"; (b) in paragraph (a)(vii), after "matter" insert "or a marine safety matter"; (c) in paragraph (c)(i), after "matter" insert "or a marine safety matter"; (d) in paragraph (d)(i), after "matter" insert "or a marine safety matter"; (e) in paragraph (f), after "matter" insert "or a marine safety matter"; (f) after paragraph (f) insert— "(fa) as if section 228ZNA were omitted; and"; (g) in paragraph (h)— (i) after "retention of the thing" insert ", or the continued detention of a vessel,"; (ii) after "matter" insert "or a marine safety matter"; (iii) after "seized" insert "or the vessel was detained"; s. 395 -- 340 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 322 (h) in paragraph (i), after "matter" insert "or a marine safety matter". (2) Section 84A of the Transport (Compliance and Miscellaneous) Act 1983 is repealed. 397 Amendment of section 228S—Definitions (1) In section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983 insert the following definitions— "commercial marine duty holder means a person to whom sections 24 to 30 of the Marine Safety Act 2010 apply; marine premises means— (a) the building or facilities used in connection with the undertaking of marine operations; and (b) land on which vessels are stored but does not include land used for residential purposes;". (2) In section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983, in the definition of relevant person, before paragraph (e) insert— "(db) a commercial marine duty holder; or". (3) In section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983, in paragraph (c) of the definition of compliance and investigative purposes, after "matter" insert "or a marine safety matter". s. 397 -- 341 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 323 398 New section 228WA inserted After section 228W of the Transport (Compliance and Miscellaneous) Act 1983 insert— "228WA Offence to impersonate a transport safety officer A person who is not a transport safety officer must not, in any way, hold himself or herself out to be a transport safety officer. Penalty: 60 penalty units.". 399 Amendment of section 228Z—Power of entry (1) In section 228Z of the Transport (Compliance and Miscellaneous) Act 1983— (a) in paragraph (b)(ii), for "search warrant." substitute "search warrant; or"; (b) after paragraph (b) insert— "(c) board any vessel at any time it is in use; or (d) enter, without consent, any marine premises at any time during which marine operations or other related activities are being carried out in or on the marine premises.". (2) At the end of section 228Z of the Transport (Compliance and Miscellaneous) Act 1983 insert— "(2) A transport safety officer may, if it is necessary to do so to enable the transport safety officer to board or leave a vessel, direct the master of the vessel or the person operating the vessel to— (a) stop the vessel; or s. 398 -- 342 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 324 (b) manoeuvre the vessel in a specified manner or to a specified place; or (c) secure the vessel in a specified manner. (3) A person must not refuse or fail to comply with a direction under subsection (2) unless the person has a reasonable excuse. Penalty: 60 penalty units.". 400 Amendment of section 228ZB—General inspection, inquiry and search powers In the heading to section 228ZB of the Transport (Compliance and Miscellaneous) Act 1983, after "General" insert "public transport related". 401 New section 228ZBA inserted After section 228ZB of the Transport (Compliance and Miscellaneous) Act 1983 insert— "228ZBA General marine related inspection, inquiry and search powers (1) A transport safety officer who enters marine premises, boards a vessel or proposes to board a vessel under this Division may, for compliance and investigative purposes, do any of the following— (a) detain a vessel for so long as is necessary for the purposes of the investigation, up to a maximum period of 48 hours; and (b) if authorised to do so under section 228ZW—detain a vessel for the period authorised under that section; (c) direct the master or owner of a vessel or the person operating a vessel to do anything necessary to enable the s. 400 -- 343 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 325 effective and safe detention of the vessel; and (d) in accordance with a search warrant issued by a magistrate, enter and inspect any premises. (2) A transport safety officer may do all or any of the following on any vessel boarded under subsection (1)— (a) search and inspect the vessel; (b) inspect any thing on the vessel; (c) make copies of, or take extracts from, any document; (d) seize any thing on the vessel if the transport safety officer believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction; (e) test any equipment or substance on the vessel; (f) take samples of any substance; (g) take measurements; (h) take any photographs or make any audio visual or other recordings that he or she considers necessary; (i) use any assistants or equipment that transport safety officer considers necessary to exercise the powers conferred by this section. (3) A person must not refuse or fail to comply with a direction under subsection (1)(c) unless the person has a reasonable excuse. Penalty: 60 penalty units. s. 401 -- 344 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 326 (4) In proceedings for an offence against subsection (3), it is a reasonable excuse if the direction was unreasonable. (5) In proceedings for an offence against subsection (3) it is a defence if the person charged proves on the balance of probabilities that the direction or its subject- matter was outside the scope of the business or other activities of the person.". 402 Amendment of section 228ZC—Securing a site In section 228ZC(1) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" insert "or marine premises". 403 Amendment of section 228ZE—Seizure power In section 228ZE of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where first occurring) insert ", marine premises". 404 Amendment of section 228ZF—Use of equipment to examine or process things (1) In section 228ZF(1) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where firstly and thirdly occurring) insert ", marine premises". (2) In section 228ZF(2) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where firstly and thirdly occurring) insert ", marine premises". 405 Amendment of section 228ZG—Search warrant (1) In section 228ZG(1) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where firstly and thirdly occurring) insert ", marine premises". s. 402 -- 345 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 327 (2) In section 228ZG(2) of the Transport (Compliance and Miscellaneous) Act 1983— (a) after "premises" (where firstly occurring) insert ", marine premises"; (b) in paragraph (a), after "premises" (where first and thirdly occurring) insert ", marine premises". (3) In section 228ZG(3)(b) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where first occurring) insert ", marine premises". 406 Amendment of section 228ZI—Announcement before entry (1) In section 228ZI(1) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where first, thirdly and fifthly occurring), insert ", marine premises". (2) In section 228ZI(2) of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where first occurring) insert ", marine premises". 407 Amendment of section 228ZJ—Copy of warrant to be given to occupier In section 228ZJ of the Transport (Compliance and Miscellaneous) Act 1983, after "premises" (where first occurring) insert ", marine premises". 408 Amendment of section 228ZK—Power to require production of documents and related items In section 228ZK(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983, after "rail operations" insert "or marine operations". s. 406 -- 346 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 328 409 Amendment of section 228ZM—Direction to provide certain information (1) For section 228ZM(1) of the Transport (Compliance and Miscellaneous) Act 1983 substitute— "(1) A transport safety officer may direct, for compliance and investigative purposes— (a) a rail operator or a rail safety worker who is associated with particular rolling stock— (i) to state the name, home address and business address of any other person who is associated with the rolling stock; (ii) to give any information that is within the power of the person to give that may lead to the identification of the owner or operator of the rolling stock on any occasion; (b) a person whom the transport safety officer believes has information concerning the identity or location of the owner or master of a vessel to provide all the information the person has regarding the identity and location of the owner and master of the vessel.". (2) After section 228ZM(2) of the Transport (Compliance and Miscellaneous) Act 1983 insert— "(2A) It is not an offence for a person to fail to comply with subsection (2) if the transport safety officer did not inform the person, at the time the direction was made, that it is an offence to fail to comply with the direction.". s. 409 -- 347 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 329 410 New section 228ZNA inserted After section 228ZN of the Transport (Compliance and Miscellaneous) Act 1983 insert— "228ZNA Person in charge must stop and provide licence or certificates when directed (1) A member of the police force or a transport safety officer may by signalling or otherwise, require the person in charge of a vessel to stop the vessel. (2) A person in charge of a vessel must not refuse or fail to stop the vessel when so required. Penalty: 10 penalty units. (3) A person in charge of a vessel must not fail to produce a marine licence issued under Part 3.3 of the Marine Safety Act 2010, if such a licence is required to operate the vessel and the person has been required to produce the licence. Penalty: 10 penalty units. (4) A master of a vessel must not fail to produce a certificate, licence or exemption issued under the Marine Safety Act 2010 while operating a vessel if such certificate, licence or exemption is required to lawfully operate the vessel and the person has been required to produce that certificate, licence or exemption. Penalty: 10 penalty units. s. 410 -- 348 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 330 (5) A person in charge of a vessel must allow inspection of any document that is required by regulations made under the Marine Safety Act 2010 to be displayed in or on the vessel when required to do so. Penalty: 10 penalty units. (6) Subsections (3), (4) and (5) do not apply if the licence, certificate, exemption or other document is not on the vessel at the time the request for its production is made.". 411 Amendment of section 228ZP—Securing seized things In section 228ZP(a) of the Transport (Compliance and Miscellaneous) Act 1983, for "premises or residential premises" substitute "premises, marine premises or residential premises". 412 Amendment of section 228ZT—Receipt for seized things In section 228ZT of the Transport (Compliance and Miscellaneous) Act 1983, for "premises or residential premises" (wherever occurring) substitute "premises, marine premises or residential premises". 413 Amendment of section 228ZW—Magistrates' Court may extend period (1) For section 228ZW(1) of the Transport (Compliance and Miscellaneous) Act 1983 substitute— "(1) A transport safety officer may apply to the Magistrates' Court— (a) in respect of a thing seized from railway premises or residential premises, within the retention period or within a period extended by the Court s. 411 -- 349 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 331 under this section for an extension of that period; or (b) in respect of a vessel detained under section 228ZB(1)(a), within the maximum 48 hour detention period permitted under that section or within a period extended by the Court under this section for an extension of that period.". (2) In section 228ZW(2) of the Transport (Compliance and Miscellaneous) Act 1983, after "retention of the thing" insert "or the continued detention of a vessel". 414 Amendment of section 228ZZ—Use of force In section 228ZZ of the Transport (Compliance and Miscellaneous) Act 1983— (a) after "Division to" insert "enter land on which a vessel is located, board a vessel,"; (b) after "at or on" insert "land on which a vessel is located, a vessel,". 415 Amendment of section 228ZZA—Use or seizure of electronic equipment In section 228ZZA of the Transport (Compliance and Miscellaneous) Act 1983, for "premises or residential premises" (wherever occurring) substitute "premises, marine premises or residential premises". 416 Amendment of section 228ZZJ—Prohibition notice (1) In section 228ZZJ(1) of the Transport (Compliance and Miscellaneous) Act 1983— (a) in paragraph (c), for "stopping points." substitute "stopping points; or"; s. 414 -- 350 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 332 (b) after paragraph (c) insert— "(d) an activity is occurring on, or in connection with the operation of, a vessel, that involves or will involve an immediate risk to the safety of a person; or (e) an activity is occurring at a place where vessels are operated, stored, moored, berthed or placed that involves or will involve an immediate risk to the safety of a person; or (f) an activity may occur at a place where vessels are operated, stored, moored, berthed or placed that, if it occurs, will involve an immediate risk to the safety of a person; or (g) an activity may occur at, on, or in the immediate vicinity of, infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel, or vessels, that if it occurs, will involve an immediate risk to the safety of the operation of the vessel.". (2) After section 228ZZJ(6)(ba) of the Transport (Compliance and Miscellaneous) Act 1983 insert— "(bb) a vessel is not to be operated; (bc) a place where vessels are operated, stored, moored, berthed or placed, at which the activity is not to be carried out; (bd) infrastructure or part of infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel or a place in the immediate vicinity of infrastructure or vessels at which the activity is not be carried out;". s. 416 -- 351 of 393 -- Part 10.2—Transport (Compliance and Miscellaneous) Act 1983 Marine Safety Act 2010 No. 65 of 2010 333 417 Amendment of section 228ZZN—Certificates (1) In section 228ZZN(1)(a) of the Transport (Compliance and Miscellaneous) Act 1983, after "operations" insert "or the operation of a vessel". (2) In section 228ZZN(2)(a) and (b) of the Transport (Compliance and Miscellaneous) Act 1983, after "operations" insert "or the operation of a vessel". __________________ s. 417 -- 352 of 393 -- Part 10.3—Port Management Act 1995 Marine Safety Act 2010 No. 65 of 2010 334 PART 10.3—PORT MANAGEMENT ACT 1995 418 Definitions In section 3(1) of the Port Management Act 1995— (a) for the definition of channel substitute— "channel has the same meaning as it has in section 3(1) of the Marine Safety Act 2010;"; (b) in the definitions of harbour master and licensed harbour master, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (c) for the definition of navigation aid substitute— "navigation aid has the same meaning as it has in section 3(1) of the Marine Safety Act 2010;"; (d) for the definition of vessel substitute— "vessel has the same meaning as it has in section 3(1) of the Marine Safety Act 2010;". 419 Other consequential amendments (1) In section 44A(3)(d) of the Port Management Act 1995, for "Marine Act 1988" substitute "Marine Safety Act 2010". (2) In section 44G(2) of the Port Management Act 1995, for "26E, 26F, 26G, 26H, 26HA, 26HB, 26HC and 26I of the Marine Act 1988" substitute "221, 232, 233, 234, 235, 236, 237 and 238 of the Marine Safety Act 2010". s. 418 See: Act No. 82/1995. Reprint No. 5 as at 31 July 2010 and amending Act Nos 82/1995, 69/2009, 93/2009 and 6/2010. LawToday: www. legislation. vic.gov.au -- 353 of 393 -- Part 10.3—Port Management Act 1995 Marine Safety Act 2010 No. 65 of 2010 335 (3) In section 73N(1) of the Port Management Act 1995, for "Director of Marine Safety" substitute "Director, Transport Safety". (4) In sections 83(c) and 88A(2) of the Port Management Act 1995, for "Marine Act 1988" (wherever occurring) substitute "Marine Safety Act 2010". (5) In section 91(1)(a) and (b) of the Port Management Act 1995, for "Part 3A of the Marine Act 1988" substitute "Chapter 6 of the Marine Safety Act 2010". (6) In section 91A of the Port Management Act 1995, in the definition of relevant Ministers, for "Marine Act 1988" substitute "Marine Safety Act 2010". __________________ s. 419 -- 354 of 393 -- Part 10.4—Consequential Amendments to Other Acts Marine Safety Act 2010 No. 65 of 2010 336 PART 10.4—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 420 Consequential amendments An Act specified in the heading to an item in Schedule 3 is amended, on the commencement of that item or a provision of that item, as set out in that item or provision. 421 Repeal of Part and Schedule 3 This Part and Schedule 3 are repealed on 1 July 2013. __________________ s. 420 -- 355 of 393 -- Marine Safety Act 2010 No. 65 of 2010 337 SCHEDULES SCHEDULE 1 Section 259 PARTICULAR POWERS OF THE SAFETY DIRECTOR CERTIFICATES OF COMPETENCY 1. To issue, cancel or suspend certificates of competency for the crew of vessels. 2. To inquire into the conduct of people holding certificates of competency. 3. To detain vessels crewed by people not holding the necessary certificates of competency. PILOTS AND PILOT EXEMPT MASTERS 4. To issue, cancel or suspend the licences of pilots and of pilot exempt masters. 5. To inquire into the conduct of pilots and pilot exempt masters. 6. To impose conditions on licences of pilots or pilot exempt masters and to vary any conditions so imposed. HARBOUR MASTERS 7. To issue, cancel or suspend the licences of harbour masters and to amend, vary or revoke licences of harbour masters. 8. To inquire into the conduct of harbour masters. PILOTAGE SERVICES PROVIDERS 9. To register or renew the registration of pilotage services providers. 10. To issue certificates of registration to pilotage services providers. Sch. 1 -- 356 of 393 -- Marine Safety Act 2010 No. 65 of 2010 338 11. To cancel or suspend the registration of pilotage services providers. 12. To inspect vessels and equipment of pilotage services providers to ensure compliance with safety standards. CREWING REQUIREMENTS 13. To determine crewing requirements for vessels. CERTIFICATION OF VESSELS AND COMMERCIAL OPERATIONS 14. To issue, suspend, cancel or revoke safe construction certificates and safe operations certificates for vessels and to place conditions on these certificates. 15. To survey and register all vessels. 16. To cause vessels to be inspected to make sure that the vessels and their equipment comply with this Act and the regulations. 17. To cause unseaworthy vessels to be detained. LOAD LINES 18. To make sure that vessels are marked with appropriate load lines. 19. To determine— (a) the manner of measuring the length and other dimensions of a vessel; and (b) the strength of vessels and the manner of measuring that strength; and (c) the manner of calculating and assigning freeboards; and (d) the specification of marks and lines associated with load lines and the form and manner of marking them; and (e) the loading limits of vessels; and Sch. 1 -- 357 of 393 -- Marine Safety Act 2010 No. 65 of 2010 339 (f) any necessary approvals and the form and manner of applications; and (g) particulars to be included in official log books. TONNAGE 20. To determine the tonnage of vessels. NAVIGATION 21. To detain vessels not equipped as required. 22. To determine the requirements for preventing collisions and with respect to lights, fog-signals and sailing rules. 23. To provide and maintain, in accordance with the standards developed by the Safety Director, navigation aids in State waters for which the Safety Director is the waterway manager. 24. To give directions (not being directions that would endanger the life of any person on the vessel) prohibiting the entry into, or requiring the removal from, any State waters of any vessel that the Safety Director has reasonable cause to believe is unseaworthy or in imminent danger of sinking and causing an obstruction to navigation or is in imminent danger of causing serious damage to the marine environment or property in State waters. 25. If the Safety Director considers it desirable to do so for the safety or convenience of navigation in State waters, by notice served on the owner or person in possession or control of a light (including a fire, lamp, illuminated sign, street light or other illuminating device) to require that owner or person to extinguish, remove, relocate, alter or modify the light as specified in the notice or do or refrain from doing any specified thing in relation to the light. 26. To control navigation and vessel movements in State waters for which the Safety Director is the waterway manager. 27. To designate anchorage areas in State waters for which the Safety Director is the waterway manager. Sch. 1 -- 358 of 393 -- Marine Safety Act 2010 No. 65 of 2010 340 28. To develop standards for the dredging and maintenance of channels the navigation of which is under the control of the Victorian Regional Channels Authority or a channel operator or any other port management body, local port manager or any waterway manager. 29. To direct persons who manage and control channels to publish information about the depths and configurations of the channels. AGREEMENTS 30. To enter into agreements or contracts with government departments or other public statutory bodies with respect to— (a) the exercise by the Safety Director and the government department or other public statutory body of their respective functions or the carrying out or providing by the Safety Director for the government department or other public statutory body of any works or services; or (b) the use or joint use by the Safety Director and the government department or other public statutory body of their respective facilities or the services of their respective staff. 31. To enter into agreements on marine safety matters with a department or public statutory body of the Commonwealth or of another State or a Territory. __________________ Sch. 1 -- 359 of 393 -- Marine Safety Act 2010 No. 65 of 2010 341 SCHEDULE 2 Sections 309, 310, 311 and 312 SUBJECT MATTER FOR REGULATIONS CERTIFICATES OF COMPETENCY 1. Grades of certificate of competency that the Safety Director can issue. 2. The duration a certificate of competency remains in effect after it has been issued. 3. The acceptance by the Safety Director of certificates or a class of certificate issued by an authority as being equivalent to certificates of competency issued by the Safety Director and the withdrawal of that acceptance. LOCAL KNOWLEDGE CERTIFICATES 4. The examination of masters as to their local knowledge and the issuing of local knowledge certificates. 5. The geographic locations in which a local knowledge certificate is required. 6. The type of circumstances in respect of which a master with a local knowledge certificate is not required to use the services of a pilot. PILOTS AND PILOT EXEMPT MASTERS 7. The examination of people as to their competency to act as pilots. 8. The examination of masters as to their competency to act as pilot to the vessels of which they are masters. 9. Fixing the age at which licensed pilots must retire from service. Sch. 2 -- 360 of 393 -- Marine Safety Act 2010 No. 65 of 2010 342 PILOTAGE SERVICE PROVIDERS 10. Safety standards that must be complied with by a pilotage service provider registered under Chapter 7. HARBOUR MASTERS 11. The qualifications and experience required on the part of licensed harbour masters and the examination of people as to their competency to be licensed harbour masters. CREWING OF VESSELS 12. The crewing of vessels generally or any class of vessel, and the certificates of competency that are required to be held by the crew of any vessel or any class of vessel. 13. Specifying the minimum age of persons that can act as crew of a vessel. 14. Requirements relating to employment of crew. 15. The accommodation to be provided, on vessels generally or any class of vessel, for the crew. CERTIFICATION OF VESSELS 16. The survey of vessels. 17. The carriage and display of safe construction certificates and safe operation certificates or certified copies of those certificates on vessels. 18. The issue of, and the conditions applying to, exemptions for vessels undergoing sea trials. CONSTRUCTION AND EQUIPMENT OF VESSELS 19. The construction of vessels, including prescribing the materials to be used in the construction of vessels, the handling of those materials and the standards for them. 20. The machinery and other equipment that must be installed in vessels. 21. The use and maintenance of machinery and other equipment that must be installed in vessels. Sch. 2 -- 361 of 393 -- Marine Safety Act 2010 No. 65 of 2010 343 22. Requirements to ensure that machinery and other equipment that must be installed in vessels is accessible. 23. The division of vessels into classes having regard to length, gross tonnage or propulsion power. 24. The measurement of vessels, including determination of tonnage. REGISTRATION OF VESSELS 25. The categories of vessels for registration purposes. 26. The exemption of classes of vessel from the requirement to be registered. 27. The duration the registration of a vessel remains in effect after it has been issued. 28. Procedures for achieving a common registration expiry date for two or more vessels registered in the same name. 29. The grounds on which registration may be cancelled or suspended and the procedures to be followed in those cases. 30. The inspection and testing of vessels. 31. The grounds on which, and the procedures by which, the use of a vessel may be prohibited and the conditions on which a prohibition may be made or revoked. 32. Requiring the Safety Director to be notified of alterations or damage to registered vessels. 33. Requiring the Safety Director to be notified of changes in the ownership or description of registered vessels. 34. The issue of identification numbers, registration labels and plates, and certificates of registration, including the issue of duplicates, the circumstances in which registration labels and plates must be returned and the procedures for their return. Sch. 2 -- 362 of 393 -- Marine Safety Act 2010 No. 65 of 2010 344 35. The issue of special plates or marks, the circumstances in which they may be issued, the information that is to be contained on them and the conditions on which they may be used. SAFE NAVIGATION 36. The safe operation and navigation of vessels. 37. The safe anchoring, mooring, riding and securing of vessels. 38. The stability, direction and control of vessels. 39. The slipping, careening and repairing of vessels. 40. Ballast and ballast water. 41. The removal of wrecks and obstructions to navigation. 42. Requirements concerning the disposal of obstructions to navigation removed under section 811. 43. The regulation and control of the use of lights and fire on board any vessel. 44. Fire-fighting on board vessels. 45. Access to and from vessels and the safety of persons embarking or disembarking from such vessels. 46. Bunkering operations or refuelling of vessels. 47. The provision, use and maintenance of navigation lights or shapes. 48. The provision, use and maintenance of sound signalling devices. 49. The carriage of stability data. 50. Requiring masters and other persons operating vessels, and passengers, to wear or carry marine safety equipment. 51. The use of State waters by bathers and others, to the extent that the use affects the operation of vessels. Sch. 2 -- 363 of 393 -- Marine Safety Act 2010 No. 65 of 2010 345 CARRIAGE OF GOODS 52. The safe carriage of goods. PASSENGERS 53. Regulating the conduct of passengers, including empowering the master of a vessel to require people to leave the vessel. 54. The maximum number of passengers to be carried on particular vessels or classes of vessel. 55. Prohibiting passengers from doing anything (including smoking) that might create a risk of explosion while a vessel is being refuelled. LOAD LINES 56. The manner of determining the length of vessels and making other measurements relevant to the manner and conditions of assignment of load lines. 57. The necessary strength of vessels and the manner of determining that strength. 58. Surveys and inspections of vessels for the purposes of load lines. 59. The manner of calculation and assignment of freeboards. 60. The specifications of the marks and lines to be used as, or associated with, load lines and the manner of using those marks and lines in order to indicate the maximum load line under different circumstances, in different seasons and at different places. 61. The limits of loading vessels under different circumstances, in different seasons and at different places and the manner of determining those limits. 62. The approvals and certificates that are required for load lines and the manner and conditions of giving and issuing them or granting exemptions from the requirements. 63. The circumstances in which certificates may be extended or cancelled. Sch. 2 -- 364 of 393 -- Marine Safety Act 2010 No. 65 of 2010 346 64. Particulars that for the purposes of load lines are required to be included in the official log book of a vessel and the manner of publicising the particulars on board the vessel and otherwise. 65. The application of the regulations to the owner or master, or both the owner and master, of a vessel. HIRE AND DRIVE VESSELS 66. The operation and use of hire and drive vessels. 67. Requiring specified information to be given to the operators of hire and drive vessels and specifying the manner in which the information is to be given. 68. Requiring the creation and retention of documentary evidence that any information required by the regulations has been given. 69. Requiring the masters of hire and drive vessels to operate the vessels in accordance with any conditions or restrictions specified in the regulations and to have any documents required by the regulations in their possession while operating the vessels. 70. Requiring the creation, maintenance and retention of documents relating to safety or the handling of emergencies. 71. Making provision for the audit of any documents required by the regulations. 72. Requiring the display of specified information in or on hire and drive vessels. 73. Making the issue of a safe construction certificate or safe operation certificate in relation to a hire and drive vessel conditional on the approval of any documents required by the regulations relating to safety or the handling of emergencies. Sch. 2 -- 365 of 393 -- Marine Safety Act 2010 No. 65 of 2010 347 74. Requiring the master of a hire and drive vessel to provide information to the owner (or agent of the owner) of a hire and drive vessel concerning any licence or certificate the master holds or has held. LICENSING OF MASTERS OF RECREATIONAL AND HIRE AND DRIVE VESSELS 75. The classes and types of recreational vessels for licensing purposes. 76. The duration a marine licence remains in effect after it has been granted. 77. The taking of photographs or making of digitised images for inclusion in marine licence documents. 78. The issue of duplicate marine licence documents. 79. The exemption of persons or classes of persons from the requirement to obtain a marine licence. 80. Tests and training of masters of recreational vessels. 81. Approving tests or courses or conducting tests or courses for the purposes of marine licences or licence endorsements on marine licences for the purposes of granting or renewing a marine licence or granting the licence endorsement. 82. The information the Safety Director may require an applicant for a marine licence or an endorsement on a marine licence or the holder of a marine licence (including an endorsed marine licence) to give to the Safety Director. 83. Requirements for holders of interstate or overseas licences or authorities to operate a vessel. 84. Records to be kept about holders of marine licences. Sch. 2 -- 366 of 393 -- Marine Safety Act 2010 No. 65 of 2010 348 COMMERCIAL VESSELS THAT MAY BE USED RECREATIONALLY 85. Application to use a commercial or hire and drive vessel or a fleet of commercial or hire and drive vessels recreationally and the evidence to accompany those applications. 86. Classes or types of vessel that may be approved for recreational use. 87. Conditions that apply when a commercial vessel is used recreationally. IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS 88. The manner and circumstances in which a recreational vessel may be immobilised. 89. The matters that must be included in notices issued, given or served under Part 4.2. 90. Procedures and requirements to be complied with before a recreational vessel or an item or thing left in or on a recreational vessel may be recovered. 91. The circumstances in which a recreational vessel is not eligible for an impoundment or immobilisation order or a forfeiture order under section 118 or 119. MISCELLANEOUS 92. Licences, certificates, registrations, permits or authorisations granted, issued or made by the Commonwealth or other States or a Territory of the Commonwealth that may be recognised as being the equivalent of licences, certificates, registrations, permits or authorisations granted, issued or made under this Act or the regulations. __________________ Sch. 2 -- 367 of 393 -- Marine Safety Act 2010 No. 65 of 2010 349 SCHEDULE 3 Section 420 CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 1 Chattel Securities Act 1987 In section 13, for "Marine Act 1988" (wherever occurring) substitute "Marine Safety Act 2010". 2 City of Melbourne Act 2001 In section 3, in paragraph (b) of the definition of rateable property, for "Marine Act 1988" substitute "Marine Safety Act 2010". 3 Crimes Act 1958 In section 317B(1), in the definition of vessel, for "Marine Act 1988" substitute "Marine Safety Act 2010". 4 Criminal Procedure Act 2009 After item 19 of Schedule 2 insert— "19A Marine Safety Act 2010 19A.1 Indictable offences under the Marine Safety Act 2010.". 5 Crown Land (Reserves) Act 1978 5.1 In section 3— (a) the definition of designated port is repealed; (b) insert the following definition— "local port has the same meaning as it has in the Port Management Act 1995;". Sch. 3 -- 368 of 393 -- Marine Safety Act 2010 No. 65 of 2010 350 5.2 In section 4(3A)— (a) for "designated" substitute "local"; (b) for "Marine Act 1988" substitute "Port Management Act 1995". 6 Environment Protection Act 1970 6.1 In section 4(1) insert the following definition— "vessel has the same meaning as it has in the Marine Safety Act 2010;". 6.2 In section 4(1)— (a) for paragraph (b) of the definition of registered owner substitute— "(b) in relation to a vessel—the person in whose name the vessel is registered under the Marine Safety Act 2010;"; (b) the definition of motor boat is repealed. 6.3 Insert the following heading to section 48C— "Special provision concerning vessels". 6.4 In section 48C, for "motor boat" (wherever occurring) substitute "vessel". 6.5 In section 55AA— (a) in the definition of owner, for "motor boat" substitute "vessel"; (b) in the definition of ship, for "motor boat" substitute "vessel". 6.6 In section 61(1B)(b)— (a) for "motor boat" (wherever occurring) substitute "vessel"; (b) for "Marine Act 1988" substitute "Marine Safety Act 2010". Sch. 3 -- 369 of 393 -- Marine Safety Act 2010 No. 65 of 2010 351 7 Fisheries Act 1995 In section 164(1), in the definition of trading vessel, for "Marine Act 1988" substitute "Marine Safety Act 2010". 8 Infringements Act 2006 In sections 16(2)(c), 17(2)(c), 18(6)(c), 21(c), 28(c), 31(c), 36(d), 61(1)(b) and 63A(1)(c), for "Marine Act 1988" substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988". 9 Local Government Act 1989 In section 3(1), in paragraph (b) of the definition of rateable property, for "Marine Act 1988" substitute "Marine Safety Act 2010". 10 Major Sporting Events Act 2009 10.1 In section 3(1), in the definition of vessel, for "Marine Act 1988" substitute "Marine Safety Act 2010". 10.2 In section 107(6)(b), for "Marine Act 1988" substitute "Marine Safety Act 2010". 11 Major Transport Projects Facilitation Act 2009 In section 3— (a) in the definition of navigation aid, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (b) in the definition of vessel, for "Marine Act 1988" substitute "Marine Safety Act 2010". 12 Marine Safety Legislation (Lakes Hume and Mulwala) Act 2001 In section 3, in the definition of marine safety legislation of Victoria, for "Marine Act 1988" substitute "Marine Safety Act 2010". Sch. 3 -- 370 of 393 -- Marine Safety Act 2010 No. 65 of 2010 352 13 National Parks Act 1975 In section 48(1)(n), for "Port Authority within the meaning of the Marine Act 1988" substitute "port management body, local port manager or waterway manager within the meaning of the Marine Safety Act 2010". 14 Pollution of Waters by Oil and Noxious Substances Act 1986 14.1 Insert the following heading to section 24D— "Powers under the Marine (Drug, Alcohol and Pollution Control) Act 1988 additional to powers under this Act". 14.2 In section 24D, for "Marine Act 1988" substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988". 15 Prostitution Control Act 1994 In section 3(1), in paragraph (d) of the definition of building, for "Marine Act 1988" substitute "Marine Safety Act 2010". 16 Transport Integration Act 2010 16.1 In section 3— (a) in the definition of harbour master, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (b) in the definition of mandatory marine safety decision, for "section 3(1) of the Marine Act 1988" substitute "section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983"; (c) in paragraph (b)(i) and (iii) of the definition of marine safety matter, for "Marine Act 1988" substitute "Marine Safety Act 2010"; Sch. 3 -- 371 of 393 -- Marine Safety Act 2010 No. 65 of 2010 353 (d) in the definition of master, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (e) in the definition of pilot, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (f) in the definition of pilot exempt master, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (g) in the definition of pilotage services provider, for "Marine Act 1988" substitute "Marine Safety Act 2010"; (h) in the definition of vessel, for "Marine Act 1988" substitute "Marine Safety Act 2010". 16.2 In section 3, in the definition of transport body— (a) paragraph (s) is repealed; (b) in paragraph (t), for "Marine Act 1988" substitute "Marine Safety Act 2010". 16.3 In section 3, in the definition of transport legislation— (a) in paragraph (g), for "Marine Act" substitute "Marine (Drug, Alcohol and Pollution Control) Act"; (b) after paragraph (g) insert— "(ga) Marine Safety Act 2010;". 16.4 In section 3, the definitions of corresponding safety law and relevant marine safety law are repealed. 16.5 For section 172(2)(a) substitute— "(a) section 14 of the Marine Safety Act 2010;". Sch. 3 -- 372 of 393 -- Marine Safety Act 2010 No. 65 of 2010 354 16.6 In section 173(1)— (a) in paragraph (a), for "Marine Act 1988" (wherever occurring) substitute "Marine Safety Act 2010, the Marine (Drug, Alcohol and Pollution Control) Act 1988"; (b) in paragraph (b)(iv), after "under" insert "Part 8.2 of the Marine Safety Act 2010 or"; (c) in paragraph (b)(v), for "Marine Act 1988" substitute "Marine Safety Act 2010"; (d) in paragraph (b)(vi), after "1986" insert "and the Marine (Drug, Alcohol and Pollution Control) Act 1988". (e) in paragraph (e)(i), after "under" insert "Part 8.2 of the Marine Safety Act 2010 or"; (f) in paragraph (e), for "corresponding safety law" substitute "relevant transport safety law"; (g) in paragraph (f), for "marine" substitute "transport". 16.7 In section 177(2)— (a) in paragraph (b), for "2006." substitute "2006; or"; (b) after paragraph (b) insert— "(c) an inquiry under section 264 of the Marine Safety Act 2010.". 16.8 In sections 178(1), 181(3) and 183(1), for "Marine Act 1988" (wherever occurring), substitute "Marine Safety Act 2010". 16.9 In section 197(1), for "corresponding safety law" substitute "relevant transport safety law". Sch. 3 -- 373 of 393 -- Marine Safety Act 2010 No. 65 of 2010 355 16.10 After section 31 insert— "31A Guidelines (1) The Minister must, within the period specified in subsection (2)(a), make guidelines in relation to the making of a declaration by the Safety Director under section 7, 81 or 250 of the Marine Safety Act 2010 or the making of a determination by the Safety Director under section 258(1)(q) of that Act. (2) The Minister— (a) must make guidelines under this section no later than 7 days after the commencement of clause 16.10 of Schedule 3 to the Marine Safety Act 2010; (b) may remake or amend guidelines made under this section at any time after guidelines referred to in paragraph (a) take effect. (3) Guidelines and amendments to guidelines made under this section must be published in the Government Gazette. (4) Guidelines and amendments to guidelines made under this section take effect on the day they are published in the Government Gazette.". 17 Wildlife Act 1975 In section 81— (a) in subsection (7), for "section 26A of the Marine Act 1988" substitute "section 220 of the Marine Safety Act 2010"; Sch. 3 -- 374 of 393 -- Marine Safety Act 2010 No. 65 of 2010 356 (b) In subsection (9), for "Marine Act 1988" substitute "Marine Safety Act 2010.". ═══════════════ Sch. 3 -- 375 of 393 -- Marine Safety Act 2010 No. 65 of 2010 357 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 August 2010 Legislative Council: 2 September 2010 The long title for the Bill for this Act was "A Bill for an Act to provide for safe marine operations in Victoria and to consequentially amend the Marine Act 1988 and other Acts and for other purposes." Endnotes -- 376 of 393 -- Marine Safety Act 2010 No. 65 of 2010 358 INDEX Subject Section Actamendments to Marine Act 1988 375–393 amendments to other Acts 418–420, Sch. 3 amendments to Transport (Compliance and Miscellaneous) Act 1983 394–417 application to types of voyages 9 commencement 2 Crown bound by 13 interaction with Occupational Health and Safety Act 2004 11 not to apply to defence force vessels 10 objects 14, 22 presumed to apply to vessels 296 principles 15–22 purpose 1 regulations 97–99, 299, 300, 309–312, 315, Sch. 2 repeal of Part 10.4, Schedule 3 421 repeal of section 315 315 savings, transitional provisions 313–374 transport legislation within Transport Integration Act 2010 12 Activity exclusion zones 208–210 Adverse publicity orders 173 Appeals 103, 114, 368–372 Arrest 160 Australian Builders Plate Standard 3, 102 Australian fishing vessels See Fishing vessels Authorised persons by police to assist 109 definitions 103, 303 obstruction, hindrance of 303 powers, duties regarding impounded, immobilised recreational vessels 116 lights 159 Boating activities exclusion zones 208–210 exemptions from Act, rules 203–207 transitional provision 343 Boating facilities 312 Bodies corporate 284, 285 -- 377 of 393 -- Marine Safety Act 2010 No. 65 of 2010 359 Subject Section Certificates of competency acting without 74 application 77 breach of conditions of 76 cancellation 91, 93 conditions 75, 78, 79 disqualification 93 issue 78 non-compliance with conditions of 75 renewal 77, 78 requirement to hold 73 Safety Director's powers 258, Sch. 1 suspension 91, 93 transitional provisions 360, 361 See also Local knowledge certificates Channel operators (def.) 3 Channels (def.) 3 See also Dredging Chief Commissioner of Police powers regarding disposal orders 148, 149 forfeiture orders 119–121, 123 impoundment, immobilisation of recreational vessels 111, 113, 118, 120, 121, 123, 127 registration of recreational vessels 124 reportable incidents 270 sale, disposal of uncollected vessels, items 144, 145, 147–149 Civil liability 35 Codes of practice – Safety duties approval 272 approved codes of practice (def.) 3 availability 275 consultation 276 effect of 277 effect of compliance with 299 revisions 273 revocation 273, 274 tabling, disallowance 278 waterway management 219 Commercial vessels See Fishing vessels; Trading vessels Convention on the International Regulations for Preventing Collisions at Sea, 1972 95, 96, 99, 100 Corresponding laws (def.) 3 Crews acts tending to endanger 88 application of Act to 9 certificates of competency 77, 78 required to have appropriate certificates 73, 74 Safety Director's powers 258, Sch. 1 -- 378 of 393 -- Marine Safety Act 2010 No. 65 of 2010 360 Subject Section Crimes Act 1958 171 Criminal Procedure Act 2009 298 Defence force vessels 10 Definitions 3, 4, 5, 9, 30, 95, 98, 102, 103, 163, 171, 175, 183, 203, 211, 267, 287, 288, 303, 304, 306, 313, 332, 333, 334, 337, 338, 339, 357, 358 Director, Transport Safety See Safety Director Disciplinary action See Adverse publicity orders; Marine licences; Permissions Distress signals 90 Dredging 199–202, 261 Embargo notices 153, 154 Evidence general provisions 294 known user statements, sold vessel statements 180 of speed 293 Uniform Shipping Laws Code 295 Exemptions boating activities 203–207 from requirements of Act 260 marine licences 57, 58 pilots 253–256 suspension during inquiries 264 transitional provisions 351, 353, 354, 359 Fees 310–312 Fishing vessels application of Act to voyages of 9 Australian fishing vessels (defs) 3, 95 declaration of 7 definition 3 registered persons (def.) 3 regulations 97 General marine licences See Marine licences Government vessels dangerous operation of 87 declaration of 7 definition 3 unsafe vessels 87 Harbour masters authorisation of persons to act as assistant harbour masters 229 definition 3 directions by 232–236 duty to engage 220 functions 230 identity cards 221, 344 -- 379 of 393 -- Marine Safety Act 2010 No. 65 of 2010 361 Subject Section licences applications 223 grant 224 notification of conditions 228 requirement for 222 variation of conditions of 225–227 licensed harbour masters (def.) 3 obstruction, non-compliance with directions of 237 powers (general) 231 powers regarding amendment, revocation of directions 235 carrying out of directions 236 entry, removal of vessels 233 written and oral directions 232 protection from liability 238 Safety Director's directions prevail 234 Safety Director's powers 258, Sch. 1 transitional provisions 344–348 Hire and drive vessels application of Act to voyages of 9 approval for recreational use 72 commercially operated vessels (def.) 3 dangerous operation of 87 declaration of 7 definition 3 directions prohibiting operation of 155 licensing offences 49–51 regulated hire and drive vessels (def.) 3 unsafe vessels 87 unsuitable for recreational use 8 See also Marine licences Improvement notices 365 Infringement notices 156, 158 Inspectors 364 International Convention for the Safety of Life at Sea, 1974 95, 97, 99, 100 Inter-state voyages 9, 95 Intra-state voyages 9 Inquiries 264 Investigations 91, 363, 364 Licences See Marine licences Lights 159, Sch. 1 Load lines 86, Sch. 1 Local Government Act 1989 158 Local knowledge certificates application 82 conditions 83 declaration of State waters requiring 81 duration, issue 83 -- 380 of 393 -- Marine Safety Act 2010 No. 65 of 2010 362 Subject Section navigation of vessels without 80 renewal 84 transitional provisions 355, 356 See also Certificates of competency Local port managers definition 3 liability 238 local ports (def.) 3 powers, duties activity exclusion zones 208, 209 control of navigation in vicinity of works 211, 212 declaration of exempt boating activities 203, 204 emergency directions 215 engagement of harbour masters 220, 229 standards for navigation aids, dredging 202 waterway rules 186, 193, 194, 196 recovery of costs from 263 Magistrates' Court 114, 368–372 Marine enforcement policy consultation in development, review 281 content 282 co-ordination, support of implementation 280 development, maintenance, publication, review by Safety Director 279 regard to be had 283 Marine incidents definition 3 reportable incidents 3, 93, 94, 270 Marine infringements 3, 156, 157 Marine licences breach of conditions 46–48, 59 cancellation 91, 93, 171 conditions 53–55 definition 3 disqualification from holding 60, 93, 171, 172 endorsements 47, 55 exemptions licences issued outside Victoria 57 masters of non-engined vessels 58 general marine licences 53 grant 53, 54 purposes 45 renewal 53, 54 restricted marine licences 54 review of decisions regarding 288–290 suspension 60, 91, 93, 171, 172 testing 56 transitional provisions 327–341, 368–372 unlicensed masters 46 -- 381 of 393 -- Marine Safety Act 2010 No. 65 of 2010 363 Subject Section See also Permissions Marine operations (def.) 3 Marine safety elimination, reduction of risks 23 inquiries into marine safety matters 3, 264 marine safety equipment, design and construction activities 3, 26, 27 marine safety infrastructure operations 3, 24, 28 marine safety work (def.) 3 marine safety workers 3, 30 principles accountability for managing safety risks 16 effect of 22 enforcement 18 equity of use of Victorian waterways 21 integrated risk management 17 participation, consultation, involvement of all affected persons 20 shared responsibility 15 transparency in decision making 19 Marine search and rescue vessels (def.) 3 Masters of vessels application of Act to 9 compliance with directions of 32, 33 definition of master 3 duties regarding activity exclusion zones 210, 213 breach of conditions of registration 37 certificates of competency 74, 77–79 directions of harbour masters 237 directions prohibiting operation of vessels 155, 162 load lines 86 local knowledge certificates 80–84 pilot exemptions 253, 255, 256 reportable incidents 93, 94 safe construction certificates 62, 63 safe operation certificates 67, 68 unregistered vessels 37 unsafe vessels 85, 87 use of pilots 248 vessel operations 31 failure to assist people in distress 91 liability 257 not to be found guilty as owner 101 pilot exempt masters 3, 256 recovery of costs from 263 Safety Director's powers 258, Sch. 1 service of notices on 110 See also Marine licences; Recreational vessels – Impoundment, immobilisation -- 382 of 393 -- Marine Safety Act 2010 No. 65 of 2010 364 Subject Section Minister powers regarding acquisition of land 271 codes of practice 272, 273, 275, 276, 278 declaration of waterway managers 6 National Standard for Commercial Vessels 3, 300 National Standard for the Administration of Marine Safety 3, 300 Navigation control of in the vicinity of works 211, 212 harbour masters' duties 230, 232 obstructions to 267, 268 port management bodies' duties 24 Safety Director's powers 184, 258, 262, 263, 268, Sch. 1 waterway managers' functions 216 Navigation aids acquisition of land for 271 definition 3 interference with 302 provision, maintenance 261 standards 199–202 Occupational Health and Safety Act 2004 11 Offences adverse publicity orders 173 by officers of bodies corporate 285 by partnerships, unincorporated bodies, associations 286 civil liability not affected by Parts 2.2–2.6 35 embargo notices 153, 154 guilt either as master or owner 101 indictable offences 24–30, 88, 302, 304 marine infringements 156, 157 place where committed 291 regarding activity exclusion zones 210 Australian Builders Plate Standards 102 breach of licence conditions 59 breach of registration conditions 37 bribery 304 certificates of competency 73–76 contravention of regulations 96 contravention of waterway rules 197, 198 crews 73, 74 dangerous operation of vessels 87 declarations regarding boating activities 207 design, manufacture, supply of marine safety equipment, vessels 25–27 -- 383 of 393 -- Marine Safety Act 2010 No. 65 of 2010 365 Subject Section directions not to operate vessels 155 directions to move vessels 92, 162 directions, notices regarding navigation 213–215, 267 disclosure of information 306 disqualified masters of recreational vessels 60 distress signals 90 embargo notices 154 emergency directions 215 endangering vessels or crews 88 engagement of harbour masters 220 failure to assist people in distress 91 failure to state name, address, giving false name, address 157 false, misleading information 182 false statements, misrepresentation 305 forfeiture orders 119 forgery, fraudulent of documents, identification marks 301 harbour masters 221, 222 interference with navigation aids 302 lights 159 load lines 86 local knowledge certificates 80 marine enforcement policy 279 marine safety infrastructure operations 24, 28 marine safety workers 30 non-compliance with conditions on use of recreational vessels 72 obstruction, hindrance of authorised persons 303 obstruction, hindrance of police 115 obstruction, non-compliance with directions of harbour masters 237 operation of recreational vessels 32 operation of vessels 269 owner onus offences 180 owners of commercially operated vessels 25, 73 passengers on board vessels 33 permission records 170 pilotage services providers 239, 245–247 pilots 248, 249 port management bodies 24 possession of marine licences 61 recreational vessel licensing offences 46–48, 52, 59–61 regulated hire and drive vessels 49–51 reportable incidents 93, 94 safe construction certificates 62, 63 safe operation certificates 67, 68 sale, disposal of interests in recreational vessels subject to orders 122, 123 search and seizure warrants 143 standards for dredging, navigation aids 202 -- 384 of 393 -- Marine Safety Act 2010 No. 65 of 2010 366 Subject Section suppliers of vessel operations 29 surrender of recreational vessels 107, 118, 119 tampering with vessels 89 unlicensed masters 46–52, 60 unregistered vessels 37 unsafe vessels 85, 87 vessel operations 25, 31 single charges for multiple contraventions 34 summary jurisdiction in indictable offences 298 Overseas voyages 9, 95 Owner onus offences cancellation of acceptance of effective statements 179 contravention of waterway rules as 198 defences 181 definitions 175 effect of payment of penalty 177 false, misleading statements 182 liability of responsible person at time of offence 176 proceedings against nominated persons 180 purpose of Part 4.7 174 use of effective statements 178 Owners of vessels application of Act to 9 definition 3 duties regarding certificates of competency 76 crews 73 load lines 86 removal of obstructions to navigation 267 reportable incidents 94 safe construction certificates 62–64, 66 safe operation certificates 67–69, 71 safety of vessels, marine safety equipment, operations 25 service of notices 110 surrender of vessels 107, 118, 119 unregistered vessels 37 unsafe vessels 85, 87 use of commercial vessels recreationally 69, 72 use of unlicensed masters 52 liability of 101 proof of ownership 132 recovery of charges, expenses from 236, 263 recovery of costs, loss, damages from 257, 268 third party protection from forfeiture orders 133 Partnerships, unincorporated associations 286 Passengers 33, Sch. 2 -- 385 of 393 -- Marine Safety Act 2010 No. 65 of 2010 367 Subject Section Permissions cancellation, suspension, conditions 166, 307 definitions 3, 163 disciplinary action against holders of 164, 165 disqualification from applying for 166 effect of suspension 169 immediate suspension notices 168 return of records 170 review of decisions regarding 288–290 service of disciplinary notices on holders of 167 suspension during inquiries 264 variation 307 Personal watercraft (def.) 3 Pilotage services providers compliance with safety standards 247 definition 3 liability 257 pilotage services (def.) 3 records to be kept 246 register 244 registration applications 240 certificates 243 changes to information 245 duration 242 grant of 241 Safety Director's powers 258, Sch. 1 transitional provisons 349, 350 unregistered providers 239 See also Vessels Pilots acting without licence, exemption 249 declaration of pilot required waters 3, 250 definition 3 exemptions applications 253 effect of 255 grant 254 pilot exempt masters (def.) 3 renewal 256 failure to use services of 248 liability 257 licences 251, 252 licensed pilot (def.) 3 Safety Director's powers 251, 252, 258, Sch. 1 transitional provisions 319, 351–354 See also Permissions; Pilotage services providers -- 386 of 393 -- Marine Safety Act 2010 No. 65 of 2010 368 Subject Section Police obstruction, hindrance of police 115 powers regarding arrest without warrant 160 authorisation of persons to assist 109 bringing of proceedings 292 embargo notices 154 impoundment, immobilisation of recreational vessels 105–113, 116, 130 infringement notices 156 moving, taking charge of vessels 160, 161 prohibition on operation of vessels 155, 269 release of recreational vessels 113 requests for waterway rules 186, 194 requirement to state name and address 157 search and seizure warrants 134, 137–139, 142 surrender of recreational vessels 107 senior police officers 103, 112, 113 Port management bodies definition 3 liability 238 powers, duties regarding activity exclusion zones 208, 209 control of navigation in the vicinity of works 211, 212 emergency directions 215 exemptions for boating activities 203, 204 safety of marine safety infrastructure operations 24 standards for navigation aids, dredging 202 waterway rules 186, 193, 194, 196 recovery of costs from 263 Port of Melbourne Corporation 3, 220, 229 Ports (def.) 3 Prevention of Collisions Convention See Convention on the International Regulations for Preventing Collisions at Sea, 1972 Proceedings against nominated persons 180 power to bring 292 responsible agency for Crown 287 Prohibition notices 366 Recreational vessels appeal rights 114 application of Act to voyages of 9 application of Part 4.2 104 dangerous operation of 87 declaration of 7 definition 3 directions prohibiting operation of 155 issue of embargo notices 154 -- 387 of 393 -- Marine Safety Act 2010 No. 65 of 2010 369 Subject Section licensing of masters of 45 licensing offences 46–48 masters' duties 31 non-compliance with Australian Builders Plate Standard 102 operators' duties 32 registered persons (def.) 3 registered recreational vessels (def.) 3 unsafe vessels 87 See also Recreational vessels – Impoundment, immobilisation; Recreational vessels – Registration Recreational vessels – Impoundment, immobilisation application for release 114 application of proceeds of sale 146, 151 compensation 129 definitions 103 directions regarding registration 124–126 disposal orders 144, 147–151 exercise of ownership rights 132 forfeiture orders 119, 120, 121, 123, 133, 145 hearing of applications for orders 127 impoundment, immobilisation orders 118, 120, 121 in addition to other penalties 104 issue of notices of 110, 111 liability for costs 131 movement by police to impound, immobilise 108, 130 movement of vessel, tampering with equipment 115 obstruction, hindrance of police 115 orders by Chief Commissioner 118 orders take effect 129 payment of designated costs 113, 114, 116, 117, 131 persons authorised to assist police 109 police powers to seize, impound, immobilise 105, 130 prohibition on sale, disposal of interests in vessels subject to orders 122, 123 protection of third party interests from forfeiture orders 133 release, return of vessels 112, 113, 116, 117 sale, disposal of vessels, items 144, 145, 147–150 seizure 106, 130 service of notice of application 121 surrender 107, 108, 118, 119 transfer of interests in vessels subject to orders 122 variation of orders 128 See also Search and seizure warrants -- 388 of 393 -- Marine Safety Act 2010 No. 65 of 2010 370 Subject Section Recreational vessels – Registration breach of conditions 37 cancellation 43, 44 conditions 40, 41 directions not to transfer, register vessels 124, 125 granting of 39 name vessel registered in 38 purpose 36 register of registered vessels 42 renewal 39 suspension 43, 126 transfer 39 transitional provisions 320–325 unregistered vessels 37 Register of Pilotage Services Providers 244, 350 Register of registered vessels 42 Regulated hire and drive vessels See Hire and drive vessels Regulations effect of compliance with 299 exemption from compliance with 206 nationally agreed standards in 300 power to make and matters provided for 309, Sch. 2 regarding fees 310–312 regarding international conventions 96–99 savings and transitional 315 Uniform Shipping Laws Code in 300 Relevant marine safety laws (def.) 3 Reportable incidents See Marine incidents Review by senior police officers 112 by VCAT 290 internal review 289, 367 marine enforcement policy 279, 281 reviewable decisions (def.) 288 Safe construction certificates See Vessels Safe operation certificates See Vessels Safety Convention See International Convention for the Safety of Life at Sea, 1974 Safety Director declaration as waterway manager 6 definition 3 functions 258 powers (general) 259, Sch. 1 powers regarding activity exclusion zones 208, 209 adverse publicity orders 173 approval of commercially operated vessels for recreational use 72 -- 389 of 393 -- Marine Safety Act 2010 No. 65 of 2010 371 Subject Section certificates of competency 78, 79 codes of practice for waterway management 219 declaration of vessels 7 declarations regarding commercially operated vehicles unsuitable for recreational use 8 detention of unsafe vessels 85 directions regarding navigation 211, 212 directions to harbour masters 235 disciplinary action 164–168 disclosure of information 306 emergency directions 215 entry, removal of vessels 233 exemptions for boating activities 203, 204 exemptions from requirements of Act 260 fittings, materials, appliances, apparatus 100 harbour master licences, identity cards 221, 223–228 local knowledge certificates 81–83 marine enforcement policy 279–281 navigation aids 199–201, 261, 266 obstruction to navigation 262, 268 permission records 170, 307 pilot exemptions 253, 254 recovery of costs 263 review 289 standards for dredging 199–201 waterway rules 184–188, 190–195 transitional provisions 357–359, 367, 374 See also Marine licences; Pilotage services providers; Recreational vessels – Registration; Vessels Safety education 312 Search and seizure warrants announcement before entry 137 application of Magistrates' Court Act 1989 140 applications for 134 copies given to occupier 138 expiry 141 issue 135 obstruction, hindrance of person executing 143 record of proceedings 136 report on execution 142 use of assistants to execute 139 Sentencing Act 1991 90 Service of documents 308 Service of notices disciplinary notices 167 disposal orders 148, 152 effective statements 178 embargo notices 154 -- 390 of 393 -- Marine Safety Act 2010 No. 65 of 2010 372 Subject Section impoundment, immobilisation orders, forfeiture orders 121, 152 unsafe vessels 85 Signals 90, Schs 1, 2 Speed evidentiary provisions 293 State waters activity exclusion zones 208–210 definition 3 unmanaged waterways 3, 186 works carried out on, under 211, 212 Supply 3, 26, 27, 102 Survey of vessels 65, 362 Trading vessels 3, 7, 9 Transport safety officers 3, 154–157 Uniform Shipping Laws Code 3, 295, 300 Unmanaged waterways See State waters VCAT 265, 290 Vessels Act presumed to apply to 296 acts tending to endanger 88 application of Act to voyages of 9 close quarters situations (def.) 4 connection with Victoria 9 dangerous operation of 87 declaration of 7 definition 3 design, manufacture, supply 26 detention 85 distress signals 90 duties of suppliers to owners of 29 exemptions from requirements of Act 260 harbour masters' powers 232–236 load lines 86, Schs 1, 2 masters' duties, liability 37 operate (def.) 3 passengers' duties 33 police powers 160, 161 prohibition on operation of 269 reportable incidents 270 safe construction certificates applications 64 issue 65 offences 62, 63 renewal 66 -- 391 of 393 -- Marine Safety Act 2010 No. 65 of 2010 373 Subject Section safe operation certificates application 69 issue 70 offences 67, 68 recording of approval to operate vessels 72 renewal 71 Safety Director's powers 258, Sch. 1 seizure, sale of for unpaid orders 297 speed (evidentiary provisions) 293 survey 65 tampering with 89 transitional provisions 318, 326, 362 unsafe vessels 5, 85 vessel design and supply activities (def.) 3 vessel operations 3, 25 See also Fishing vessels; Government vessels; Hire and drive vessels; Owners of vessels; Recreational vessels Victorian Civil and Administrative Tribunal Act 1998 288, 290 Victorian Regional Channels Authority 3, 220 Volunteers 3, 285, 286 Waterway managers codes of practice for waterway management 219 declaration 6 definition 3 fees 311 functions, powers (general) 216 indemnity 218 liability 238 powers, duties regarding activity exclusion zones 208, 209 authorisation of assistant harbour masters 229 delegation 217 emergency directions 215 engagement of licensed harbour masters 220 exemptions regarding boating activities 203, 204 navigation in vicinity of works 211, 212 request for waterway rules 186, 193, 194, 196 standards for navigation aids, dredging 202 recovery of costs from 263 regulations 311 transitional provisions 317, 373 Waterway rules commencement 189 consequential rules 185 contravention 197, 198, 207 definitions 183 exemptions 203, 205–207 making, matters to be considered 184, 187 -- 392 of 393 -- Marine Safety Act 2010 No. 65 of 2010 374 Subject Section on request, or on Safety Director's initiative 186 publication 190 reasons for making, not making 188 requests for making, consultation requirements 193–196 transitional provisions 342 urgent safety rules 183, 191, 192 -- 393 of 393 --