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This is a Bill, not an Act. For current law, see the Acts databases.
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Marine Safety (Domestic Commercial
Vessel) National Law Bill 2012
No. , 2012
(Infrastructure and Transport)
A Bill for an Act to provide for a national law about
marine safety for certain commercial vessels, and
for related purposes
i Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Definitions
.........................................................................................
2
4
Adoption of Marine Safety (Domestic Commercial Vessel)
National Law ..................................................................................... 3
5 Constitutional
reach of Act ................................................................ 4
6
Relationship with State and Territory laws ........................................ 5
7
Avoiding inconsistency, including operational inconsistency,
arising between this Act and State and Territory workplace
health and safety laws ........................................................................ 7
8 Extraterritorial
operation .................................................................... 8
9
Charging of fees by States etc. not prevented .................................... 8
10
National Regulator to pay amounts to States, etc. ............................. 8
11
Commonwealth consent to conferral of functions etc. on the
National Regulator etc. by corresponding State-Territory
laws .................................................................................................... 9
12 Meaning
of
corresponding State-Territory law ............................... 10
13 Meaning
of
imposes a duty .............................................................. 10
14 When
duty
imposed ......................................................................... 11
15
Imposing duty under State or Territory law ..................................... 12
16
Review of decisions under corresponding State-Territory
laws .................................................................................................. 13
17
References in instruments to the National Law ............................... 14
18 Powers
of
magistrates
......................................................................
14
19 Regulations
......................................................................................
14
Schedule 1--Marine Safety (Domestic Commercial
Vessel) National Law
15
Part 1--Preliminary
15
1 Short
title
.........................................................................................
15
2 Commencement
...............................................................................
15
3
Objects of Law ................................................................................. 15
4
Law binds the Crown ....................................................................... 16
5
Extended geographical jurisdiction--category A ............................ 16
6 Definitions
.......................................................................................
16
7 Definition
of
domestic commercial vessel ....................................... 23
8 Definition
of
vessel .......................................................................... 24
Part 2--The National Marine Safety Regulator
26
9
The National Marine Safety Regulator ............................................ 26
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 ii
10
Functions of the National Regulator ................................................ 26
11 Delegation
........................................................................................
27
Part 3--General safety duties relating to domestic commercial
vessels
29
Division 1--Duties of owners
29
12
Duty of owners of domestic commercial vessels to ensure
safety of vessels, marine safety equipment and operations .............. 29
13
Offences relating to contraventions of section 12 ............................ 30
Division 2--Duties of designers, builders, suppliers etc.
31
14
Duty relating to design, manufacture etc. of domestic
commercial vessels .......................................................................... 31
15
Offences relating to contraventions of section 14 ............................ 31
Division 3--Duties of masters
33
16
Duty of masters of domestic commercial vessels to ensure
safety of vessels, marine safety equipment and operations .............. 33
17
Duty of masters of domestic commercial vessels to take
reasonable care for safety of persons ............................................... 33
18
Offences relating to contraventions of section 16 or 17................... 34
Division 4--Duties of crew
36
19
Duty of crew of domestic commercial vessels to take
reasonable care for safety of persons, etc. ....................................... 36
20
Offences relating to contraventions of section 19 ............................ 36
Division 5--Duties of passengers
38
21
Duty of passengers on domestic commercial vessels to take
reasonable care for safety of persons, etc. ....................................... 38
22
Offences relating to contraventions of section 21 ............................ 38
Division 6--Other duties
40
23
Duty of persons relating to safety of persons on domestic
commercial vessels, etc. ................................................................... 40
24
Offences relating to contraventions of section 23 ............................ 40
25
Duty of persons in relation to domestic commercial vessels ........... 41
26
Offences relating to contraventions of section 25 ............................ 42
Division 7--General provisions
43
27
Determining what is reasonably practicable to ensure safety .......... 43
28
Functions and powers of marine safety inspectors not
affected ............................................................................................ 43
29
Requirements imposed by this Part do not limit one another .......... 43
iii Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Part 4--Vessel identifiers and certificates for vessels and
seafarers
44
Division 1--Unique identifiers
44
30
Person may apply for unique identifier ............................................ 44
31
Issue of unique identifier ................................................................. 44
32
Offence--operating etc. a vessel without a unique identifier
(owner) ............................................................................................. 44
33
Offence--operating etc. a vessel without a unique identifier
(master) ............................................................................................ 45
34 Offence--display
etc.
of
a unique identifier (owner) ...................... 45
35
Offence--display etc. of unique identifier (master) ........................ 46
36
Offence--removal or alteration of a unique identifier ..................... 46
Division 2--Certificates of survey
48
37
Person may apply for a certificate of survey .................................... 48
38
Issue of certificate of survey ............................................................ 48
39
Person may apply for variation, suspension or revocation of
a certificate of survey ....................................................................... 49
40
Variation of certificate of survey ..................................................... 49
41
Suspension of certificate of survey .................................................. 49
42 Revocation
of
certificate of survey .................................................. 50
43
Offence--operating etc. a vessel without a certificate of
survey (owner) ................................................................................. 51
44
Offence--operating etc. a vessel without a certificate of
survey (master) ................................................................................ 51
45
Offence--breach of a condition of a certificate of survey
(owner) ............................................................................................. 52
46
Offence--breach of a condition of a certificate of survey
(master) ............................................................................................ 52
Division 3--Certificates of operation
53
47
Person may apply for a certificate of operation ............................... 53
48
Issue of certificate of operation ........................................................ 53
49
Person may apply for variation, suspension or revocation of
a certificate of operation .................................................................. 54
50
Variation of certificate of operation ................................................. 54
51
Suspension of certificate of operation .............................................. 55
52 Revocation
of
certificate of operation .............................................. 56
53
Offence--operating etc. a vessel without a certificate of
operation (owner) ............................................................................. 56
54
Offence--operating etc. a vessel without a certificate of
operation (master) ............................................................................ 57
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 iv
55
Offence--breach of a condition of a certificate of operation
(owner) ............................................................................................. 57
56
Offence--breach of a condition of a certificate of operation
(master) ............................................................................................ 58
57
Obligation to notify National Regulator of certain matters .............. 58
Division 4--Certificates of competency
59
58
Regulations may provide for certificate of competency .................. 59
59
Individual may apply for a certificate of competency ..................... 59
60
Issue of certificate of competency ................................................... 59
61
Person may apply for variation, suspension or revocation of
a certificate of competency .............................................................. 60
62
Variation of certificate of competency ............................................. 61
63
Suspension of certificate of competency ......................................... 61
64 Revocation
of
certificate of competency ......................................... 62
65
Offence--owner causing etc. performance of duties or
functions without a certificate of competency ................................. 62
66
Offence--person performing duties or functions without a
certificate of competency ................................................................. 63
67
Offence--master causing etc. performance of duties or
functions without a certificate of competency ................................. 63
68
Offence--owner causing etc. breach of a condition of a
certificate of competency ................................................................. 64
69
Offence--breach of a condition of a certificate of
competency by any person ............................................................... 64
70
Offence--master causing etc. breach of a condition of a
certificate of competency ................................................................. 65
Division 5--General matters relating to unique identifiers and
certificates
66
71
National Regulator may require information ................................... 66
72
National Regulator must give a show cause notice before
varying, suspending or revoking a certificate .................................. 66
73
National Regulator may recognise certificates ................................ 67
74 Fit
and
proper
person ....................................................................... 67
75
Regulations may provide for matters relating to certificates
and unique identifiers ....................................................................... 68
76
Regulations may provide for matters relating to applications
for certificates and unique identifiers............................................... 68
77
Regulations may make provision in relation to the issue,
variation and revocation of certificates and unique identifiers ........ 69
78
Regulations may make provision in relation to renewal and
transfer of certificates ...................................................................... 70
79
Regulations may require display of certificates ............................... 70
v Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
80
Regulations may provide for certificate of operation for
persons ............................................................................................. 70
81
Effect of certificate of operation for persons ................................... 70
82 Defeasibility
.....................................................................................
71
83
Certificates etc. to be made available............................................... 71
84
National Regulator may require delivery of revoked
certificates ........................................................................................ 71
Part 5--Assistance and reporting requirements
72
85
Obligation to render assistance ........................................................ 72
86
Obligation to render assistance if requisitioned ............................... 72
87
Obligation to record requests for assistance .................................... 73
88
Reporting of marine incidents to National Regulator (owner) ......... 74
89
Reporting of marine incidents to National Regulator (master) ........ 74
90
Evidence of marine incidents ........................................................... 75
Part 6--Powers of marine safety inspectors
77
Division 1--Appointment of marine safety inspectors etc.
77
91
Appointment of marine safety inspectors ........................................ 77
92 Identity
cards
...................................................................................
77
93
False representation about being a marine safety inspector ............. 78
94
Obstructing or hindering a marine safety inspector ......................... 78
Division 2--Entry, search, seizure, detention and
information-gathering powers
79
Subdivision A--Powers to facilitate boarding with or without
consent or warrant
79
95
Requirement to facilitate boarding ................................................... 79
96
Entering certain premises for access to domestic commercial
vessel ............................................................................................... 79
Subdivision B--Powers relating to vessels, exercisable without
consent or warrant
80
97
Boarding a vessel ............................................................................. 80
98
Requiring master of a vessel to answer questions about the
nature of the vessel .......................................................................... 81
99 Monitoring
domestic
commercial vessels ........................................ 82
100
Sampling, securing or seizing things found using vessel
monitoring powers ........................................................................... 84
101 Detaining
domestic
commercial vessels .......................................... 85
102
Offence--not complying with requirement made under
section 99 ......................................................................................... 86
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 vi
Subdivision C--Powers relating to any premises, exercisable with
consent or warrant
87
103
Entering premises with consent or under warrant ............................ 87
104 Monitoring
premises
........................................................................
88
105 Enforcement
powers
........................................................................
90
106
Requiring persons on premises entered under warrant to
answer questions and produce documents ....................................... 92
107
Using force in executing a warrant .................................................. 93
108 Relationship
with
Subdivision B ..................................................... 93
Division 3--Other powers
94
109 Giving
directions ............................................................................. 94
110 Issuing
improvement notices ........................................................... 95
111 Issuing
prohibition notices ............................................................... 96
112
Copies of notices to be displayed and distributed ............................ 97
113
Notices not to be tampered with or removed ................................... 98
Division 4--Persons assisting marine safety inspectors
99
114
Persons assisting marine safety inspectors ....................................... 99
Division 5--Obligations and incidental powers of marine safety
inspectors
100
115 Consent
..........................................................................................
100
116
Announcement before entry under warrant ................................... 100
117
Marine safety inspector to be in possession of warrant ................. 101
118
Details of warrant etc. to be given to occupier............................... 101
119
Completing execution of warrant after temporary cessation ......... 102
120
Completing execution of warrant stopped by court order .............. 103
121
Expert assistance to operate electronic equipment ......................... 103
122
Compensation for damage to electronic equipment ....................... 103
123
Extending period for which something is secured ......................... 104
124 Offence--interfering
with securing of thing .................................. 105
Division 6--Occupier's rights and responsibilities
106
125
Occupier entitled to observe execution of warrant ........................ 106
126
Occupier to provide marine safety inspector with facilities
and assistance ................................................................................. 106
Division 7--General provisions relating to seizure and detention
107
127
Copies of seized things to be provided .......................................... 107
128 Receipts
for
seized things .............................................................. 107
129
Return of seized things .................................................................. 107
130
Magistrate may permit a thing to be retained ................................ 108
131
Costs of detention .......................................................................... 109
132
Disposal of seized things and detained vessels .............................. 110
vii Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
133
Compensation for acquisition of property ..................................... 110
Division 8--Warrants
112
134 Monitoring
warrants
......................................................................
112
135 Enforcement
warrants
....................................................................
112
136
Enforcement warrants by telephone, fax etc. ................................. 113
137
Offence relating to warrants by telephone, fax etc. ....................... 115
Part 7--Infringement notices
117
138 Infringement
notices
......................................................................
117
Part 8--General matters
118
Division 1--Review of decisions
118
139 Reviewable
decisions ..................................................................... 118
140
Internal review of reviewable decisions ......................................... 119
141 Applications
for AAT review ........................................................ 120
142
Review of decisions made under the regulations ........................... 120
Division 2--Exemptions
121
143
Power of exemption ....................................................................... 121
144
Offence of breaching a condition of exemption (owner) ............... 121
145
Offence of breaching a condition of exemption (master) .............. 122
146
Offence of breaching a condition of exemption (all persons) ........ 122
Division 3--Application of National Law to certain bodies
123
147
Treatment of partnerships .............................................................. 123
148
Treatment of unincorporated associations ..................................... 123
149
Treatment of trusts with multiple trustees ...................................... 124
Division 4--Fees
125
150
Charging of fees by the National Regulator ................................... 125
151
Charging of fees by accredited persons ......................................... 125
Division 5--Disclosure of information
126
152
Disclosure of information by certain persons to the National
Regulator ....................................................................................... 126
Division 6--Immunity from suit
127
153 Immunity
from
suit
........................................................................
127
Division 7--Matters relating to evidence and proceedings, etc.
128
154
National Regulator may require certain information ..................... 128
155
Offence not to give information ..................................................... 128
156 Evidentiary
certificates .................................................................. 129
157
Burden of proving certain matters lies on defendant ..................... 129
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 viii
Division 8--Adverse publicity orders
131
158
Adverse publicity orders ................................................................ 131
Division 9--Regulations and other legislative instruments
133
159 Regulations
....................................................................................
133
160
Regulations may prescribe matters relating to accreditation
and approval ................................................................................... 134
161
Offence of contravening a condition of accreditation .................... 135
162
Regulations may prescribe penalties etc. ....................................... 137
163
Legislative instruments other than regulations .............................. 137
164 Incorporation
of
material, etc. ........................................................ 138
165
Regulations may deal with transitional matters ............................. 138
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 1
A Bill for an Act to provide for a national law about
1
marine safety for certain commercial vessels, and
2
for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Marine Safety (Domestic Commercial
6
Vessel) National Law Act 2012.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Section 3
2 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
19
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence within the period of 12 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 1
At the same time as the provisions covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Definitions
10
(1) For the purposes of this Act, the local application provisions of
11
this Act are the provisions of this Act other than the Marine Safety
12
(Domestic Commercial Vessel) National Law set out in Schedule 1
13
to this Act.
14
(2) In the local application provisions of this Act:
15
Commonwealth Minister means the Minister of State
16
administering this Act.
17
Section 4
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 3
constitutional corporation means a corporation to which
1
paragraph 51(xx) of the Constitution applies.
2
corresponding State-Territory law: see section 12.
3
imposes a duty: see section 13.
4
international agreement means a treaty or agreement whose
5
parties are:
6
(a) Australia and a foreign country; or
7
(b) Australia and 2 or more foreign countries.
8
Marine Safety (Domestic Commercial Vessel) National Law of
9
the Commonwealth means the provisions applying as a law of the
10
Commonwealth because of section 4.
11
participating Territory means the following:
12
(a) the Australian Capital Territory;
13
(b) the Jervis Bay Territory;
14
(c) the Territory of Ashmore and Cartier Islands;
15
(d) the Territory of Christmas Island;
16
(e) the Territory of Cocos (Keeling) Islands.
17
this jurisdiction means the Commonwealth.
18
(3) Terms used in the local application provisions of this Act and also
19
in the Marine Safety (Domestic Commercial Vessel) National Law
20
set out in Schedule 1 to this Act have the same meanings in those
21
provisions as they have in that Law.
22
4 Adoption of Marine Safety (Domestic Commercial Vessel)
23
National Law
24
The Marine Safety (Domestic Commercial Vessel) National Law
25
set out in Schedule 1 to this Act, and regulations and other
26
legislative instruments made under that Law:
27
(a) apply as a law of this jurisdiction; and
28
(b) as so applying, may be referred to as the Marine Safety
29
(Domestic Commercial Vessel) National Law of the
30
Commonwealth.
31
Section 5
4 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
5 Constitutional reach of Act
1
(1) This Act applies to activities of, or matters that relate to, the
2
following:
3
(a) a vessel engaged in trade and commerce:
4
(i) among the States; or
5
(ii) between a State and a Territory; or
6
(iii) between 2 Territories;
7
(b) a vessel that is external to Australia;
8
(c) a vessel of which the owner, or any of the owners, is a
9
constitutional corporation;
10
(d) a vessel, so far as the application of this Act to activities of,
11
or in relation to, the vessel is reasonably appropriate and
12
adapted to giving effect to Australia's obligations under an
13
international agreement;
14
(e) a vessel of which the owner, or any of the owners, is the
15
Commonwealth or a Commonwealth authority;
16
(f) a vessel that is within a participating Territory;
17
(g) navigation or shipping, to the extent that the navigation or
18
shipping relates to trade and commerce:
19
(i) among the States; or
20
(ii) between a State and a Territory; or
21
(iii) between 2 Territories;
22
(h) any matter that may be made the subject of the jurisdiction of
23
the High Court under paragraph 76(iii) of the Constitution;
24
(i) things that are incidental to activities or matters referred to in
25
any of the above paragraphs.
26
(2) For the purposes of subsection (1), an activity of, or a matter in
27
relation to, a vessel includes, but is not limited to, an activity done
28
by a person, or in relation to a person, in the capacity of owner,
29
master or crew of the vessel.
30
(3) For the purposes of subsection (1), external to Australia means:
31
(a) beyond the baseline from which the breadth of the territorial
32
sea is measured under section 7 of the Seas and Submerged
33
Lands Act 1973; or
34
Section 6
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 5
(b) any waters on the landward side of the territorial sea that are
1
not within the limits of a State or internal Territory.
2
Note 1:
For the baseline see Australia's territorial sea baseline (AGPS) 1988:
3
generally the baseline is the lowest astronomical tide along the coast
4
but it also includes lines enclosing bays and indentations that are not
5
bays and straight baselines that depart from the coast.
6
Note 2:
A reference to Australia in any other provision of this Act includes a
7
reference to the coastal sea of Australia: see section 15B of the Acts
8
Interpretation Act 1901.
9
6 Relationship with State and Territory laws
10
(1) This Act is intended to apply to the exclusion of a law of a State or
11
Territory that relates to marine safety so far as it would otherwise
12
apply in relation to domestic commercial vessels.
13
(2) However, subsection (1) does not apply to a law of a State or
14
Territory so far as:
15
(a) the law is prescribed by the regulations as a law to which that
16
subsection does not apply; or
17
(b) the law deals with any of the following matters:
18
(i) management of ports, harbours and moorings;
19
(ii) environmental management, including pollution, impact
20
assessments and sanctuaries;
21
(iii)
pilotage;
22
(iv) management of dangerous goods;
23
(v) designation of waters, including designation of waters
24
by reference to the vessels that are or are not permitted
25
to operate in those waters;
26
(vi) regulation or prohibition of the operation of specified
27
vessels or classes of vessels in specified areas;
28
(vii)
harbour
masters;
29
(viii) speed limits, navigation aids, traffic management plans,
30
rules for prevention of collisions, no wash zones, the
31
management of events on waterways, wrecks, salvage,
32
passing dredges, towing objects, bar crossings and local
33
knowledge requirements;
34
(ix) removing obstructions (including abandoned, sinking
35
and derelict vessels) from navigable waters;
36
Section 6
6 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(x) the actions of persons under the influence of alcohol or
1
other drugs;
2
(xi) false distress signals and calls;
3
(xii) management of passengers;
4
(xiii) repairs, cutting or welding occurring on board vessels;
5
(xiv) requirements for vessels conducting particular
6
dangerous operations or operations that may cause
7
offence, including hauling garbage;
8
(xv) prices charged for the provision of commercial services;
9
(xvi)
fisheries
management;
10
(xvii) storage, preparation, service and disposal of food and
11
beverages on vessels;
12
(xviii)
marine
radio;
13
(xix) monitoring of marine communication services;
14
(xx) gas and electrical safety;
15
(xxi) workplace health and safety;
16
(xxii) emergency management and response;
17
(xxiii) any other matters prescribed by the regulations.
18
(3) To avoid doubt, this Act is not intended to apply to the exclusion of
19
a law of a State or Territory that relates to activities or matters to
20
which this Act does not apply under subsection 5(1).
21
(4) This Act is not intended to exclude or limit the operation of a law
22
that is covered by subsection (2) and is capable of operating
23
concurrently with this Act.
24
(5) This Act is not intended to exclude or limit the concurrent
25
operation of a law of a State or Territory that is covered by
26
subsection (2) and that makes an act or omission that is an offence
27
against a provision of this Act an offence against the law of the
28
State or Territory.
29
(6) Subsections (4) and (5) apply even if the law of the State or
30
Territory does any one or more of the following:
31
(a) provides for a penalty for the offence that differs from the
32
penalty provided for in this Act;
33
Section 7
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 7
(b) provides for a fault element in relation to the offence that
1
differs from the fault elements in relation to the offence
2
against this Act;
3
(c) provides for a defence in relation to the offence that differs
4
from the defences in relation to the offence against this Act.
5
(7)
If:
6
(a) an act or omission of a person is both an offence against the
7
Marine Safety (Domestic Commercial Vessel) National Law
8
of the Commonwealth and an offence against the law of a
9
State or Territory or the common law; and
10
(b) the person is convicted of either of those offences;
11
the person is not liable to be convicted of the other of those
12
offences.
13
(8) To avoid doubt, a reference in this section to a law of a State or
14
Territory includes a reference to a provision of such a law.
15
7 Avoiding inconsistency, including operational inconsistency,
16
arising between this Act and State and Territory
17
workplace health and safety laws
18
(1) This section has effect despite anything else in the Marine Safety
19
(Domestic Commercial Vessel) National Law of the
20
Commonwealth.
21
(2) This section does not apply to a provision of a law of a State or
22
Territory that is capable of concurrent operation with the Marine
23
Safety (Domestic Commercial Vessel) National Law of the
24
Commonwealth.
25
(3) A provision of the Marine Safety (Domestic Commercial Vessel)
26
National Law of the Commonwealth does not:
27
(a) prohibit the doing of an act; or
28
(b) impose a liability (whether civil or criminal) for doing an act;
29
if the doing of that act is specifically authorised or required by or
30
under a provision of a law of a State or Territory that deals with
31
workplace health and safety.
32
Section 8
8 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(4) A provision of the Marine Safety (Domestic Commercial Vessel)
1
National Law of the Commonwealth does not:
2
(a) require the doing of an act; or
3
(b) impose a liability (whether civil or criminal) for not doing an
4
act;
5
if the doing of that act is specifically prohibited by or under a
6
provision of a law of a State or Territory that deals with workplace
7
health and safety.
8
(5) A provision of the Marine Safety (Domestic Commercial Vessel)
9
National Law of the Commonwealth does not operate to the extent
10
necessary to ensure that no inconsistency (including operational
11
inconsistency) arises between:
12
(a) the provision of the Marine Safety (Domestic Commercial
13
Vessel) National Law of the Commonwealth; and
14
(b) a provision of a law of a State or Territory that deals with
15
workplace health and safety that would, but for this
16
subsection, be inconsistent with the provision of the Marine
17
Safety (Domestic Commercial Vessel) National Law of the
18
Commonwealth.
19
8 Extraterritorial operation
20
This Act applies within and outside Australia.
21
9 Charging of fees by States etc. not prevented
22
This Act does not prevent a State or the Northern Territory, or an
23
agency of a State or the Northern Territory, charging a fee in
24
relation to a thing done under the Marine Safety (Domestic
25
Commercial Vessel) National Law of the Commonwealth by a
26
delegate of the National Regulator, or an accredited person, who is
27
an officer or employee of that State, the Northern Territory or that
28
agency.
29
10 National Regulator to pay amounts to States, etc.
30
(1)
If:
31
Section 11
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 9
(a) an amount payable under an infringement notice is paid to
1
the National Regulator; and
2
(b) the infringement notice was issued by a marine safety
3
inspector who is an officer or employee of an agency of a
4
State or the Northern Territory, or by the National Regulator
5
on the recommendation of such a marine safety inspector;
6
the National Regulator must pay to that State or Territory an
7
amount equal to that amount.
8
(2) A payment of an amount to a State or Territory under
9
subsection (1) is subject to the condition that, if the National
10
Regulator becomes liable to refund the whole or part of that
11
amount, the State or Territory must pay to the National Regulator
12
an amount equal to the amount that the National Regulator is liable
13
to refund.
14
11 Commonwealth consent to conferral of functions etc. on the
15
National Regulator etc. by corresponding State-Territory
16
laws
17
(1) A corresponding State-Territory law may confer functions or
18
powers, or impose duties, on the National Regulator or other
19
officer or authority of the Commonwealth.
20
(2) Subsection (1) does not authorise the conferral of a function or
21
power, or the imposition of a duty, by a corresponding
22
State-Territory law to the extent to which:
23
(a) the conferral or imposition, or the authorisation, would
24
contravene any constitutional doctrines restricting the duties
25
that may be imposed on the National Regulator or other
26
officer or authority; or
27
(b) the authorisation would otherwise exceed the legislative
28
power of the Commonwealth.
29
(3) Subsection (1) does not extend to a function, power or duty of a
30
kind specified in regulations made for the purposes of this
31
subsection.
32
(4) This Act is not intended to exclude or limit the operation of a
33
corresponding State-Territory law that confers any functions or
34
Section 12
10 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
powers, or imposes any duties, on the National Regulator or other
1
officer or authority to the extent to which that law:
2
(a) is consistent with subsections (1) to (3); and
3
(b) is capable of operating concurrently with this Act.
4
12 Meaning of corresponding State-Territory law
5
(1) For the purposes of this Act, corresponding State-Territory law
6
means a law of a State or the Northern Territory that is declared by
7
the Commonwealth Minister, by legislative instrument, to
8
correspond to this Act, including such a law as amended from time
9
to time.
10
(2) The Commonwealth Minister may revoke a declaration under
11
subsection (1) in relation to a law of a State or the Northern
12
Territory only if:
13
(a) the Minister is requested by the State or Territory concerned
14
to revoke the declaration; or
15
(b) the State or Territory law has been amended otherwise than
16
as unanimously agreed by the members of the COAG
17
Council under the Intergovernmental Agreement for
18
Commercial Vessel Safety Reform; or
19
(c) proposed amendments of the State or Territory law have been
20
unanimously agreed by the members of the COAG Council
21
under the Intergovernmental Agreement for Commercial
22
Vessel Safety Reform, and the State or Territory law has not
23
been amended in accordance with that agreement within a
24
reasonable period after the agreement.
25
13 Meaning of imposes a duty
26
For the purposes of this Act, a corresponding State-Territory law
27
imposes a duty on the National Regulator or other officer or
28
authority if:
29
(a) the corresponding State-Territory law confers a function or
30
power on the National Regulator or other officer or authority;
31
and
32
(b) the circumstances in which the function or power is conferred
33
give rise to an obligation on the National Regulator or other
34
Section 14
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 11
officer or authority to perform the function or to exercise the
1
power.
2
14 When duty imposed
3
Application
4
(1) This section applies if a corresponding State-Territory law purports
5
to impose a duty on the National Regulator or other officer or
6
authority of the Commonwealth.
7
State or Territory legislative power sufficient to support duty
8
(2) The duty is taken not to be imposed by this Act (or any other law
9
of the Commonwealth) to the extent to which:
10
(a) imposing the duty is within the legislative powers of the State
11
or Territory concerned; and
12
(b) imposing the duty by the law of the State or Territory is
13
consistent with the constitutional doctrines restricting the
14
duties that may be imposed on the National Regulator or
15
other officer or authority of the Commonwealth.
16
Note:
If this subsection applies, the duty will be taken to be imposed by
17
force of the law of the State or Territory (the Commonwealth having
18
consented under section 11 to the imposition of the duty by that law).
19
Commonwealth legislative power sufficient to support duty but
20
State or Territory legislative powers are not
21
(3) If, to ensure the validity of the purported imposition of the duty, it
22
is necessary that the duty be imposed by a law of the
23
Commonwealth (rather than by force of the law of a State or
24
Territory), the duty is taken to be imposed by this Act to the extent
25
necessary to ensure that validity.
26
(4) If, because of subsection (3), this Act is taken to impose the duty, it
27
is the intention of the Parliament to rely on all powers available to
28
it under the Constitution to support the imposition of the duty by
29
this Act.
30
(5) The duty is taken to be imposed by this Act in accordance with
31
subsection (3) only to the extent to which imposing the duty:
32
Section 15
12 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) is within the legislative powers of the Commonwealth; and
1
(b) is consistent with the constitutional doctrines restricting the
2
duties that may be imposed on the National Regulator or
3
other officer or authority of the Commonwealth.
4
(6) To avoid doubt, neither this Act (nor any other law of the
5
Commonwealth) imposes a duty on the National Regulator or other
6
officer or authority of the Commonwealth to the extent to which
7
imposing such a duty would:
8
(a) contravene any constitutional doctrine restricting the duties
9
that may be imposed on the National Regulator or other
10
officer or authority of the Commonwealth; or
11
(b) otherwise exceed the legislative power of the
12
Commonwealth.
13
(7) This section does not limit section 11.
14
15 Imposing duty under State or Territory law
15
(1)
This
section:
16
(a) applies only for the purposes of the application of the
17
provisions of this Act or another law of the Commonwealth
18
(with or without modification) as a law of a State or the
19
Northern Territory by a provision of a corresponding
20
State-Territory law; and
21
(b) does not apply for those purposes if the corresponding
22
State-Territory law otherwise provides.
23
(2) If the corresponding State-Territory law purports to impose a duty
24
on the National Regulator or other officer or authority of the
25
Commonwealth to do a particular thing, the duty is taken to be
26
imposed by the corresponding State-Territory law to the extent to
27
which imposing the duty:
28
(a) is within the legislative powers of the State or Territory
29
concerned; and
30
(b) is consistent with the constitutional doctrines restricting the
31
duties that may be imposed on the National Regulator.
32
(3) To avoid doubt, the corresponding State-Territory law does not
33
impose the duty on the National Regulator or other officer or
34
Section 16
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 13
authority of the Commonwealth to the extent to which imposing
1
the duty would:
2
(a) contravene any constitutional doctrine restricting the duties
3
that may be imposed on the National Regulator or other
4
officer or authority of the Commonwealth; or
5
(b) otherwise exceed the legislative powers of the State or
6
Territory concerned.
7
(4) If imposing on the National Regulator or other officer or authority
8
of the Commonwealth the duty to do that thing would:
9
(a) contravene any constitutional doctrine restricting the duties
10
that may be imposed on the National Regulator or other
11
officer or authority of the Commonwealth; or
12
(b) otherwise exceed the legislative powers of both the State or
13
Territory and the Commonwealth;
14
the corresponding State-Territory law is taken instead to confer on
15
the National Regulator or other officer or authority of the
16
Commonwealth a power to do that thing at the discretion of the
17
National Regulator or other officer or authority of the
18
Commonwealth.
19
16 Review of decisions under corresponding State-Territory laws
20
(1) Applications may be made to the Administrative Appeals Tribunal
21
for review of reviewable State-Territory decisions.
22
(2) A decision made by the National Regulator in the performance of a
23
function or the exercise of a power conferred by a corresponding
24
State-Territory law is a reviewable State-Territory decision for the
25
purposes of this section if:
26
(a) the law under which the decision was made provides for
27
review by the Administrative Appeals Tribunal; and
28
(b) the decision is declared by the regulations to be a reviewable
29
State-Territory decision for the purposes of this section.
30
(3) For the purposes of this section, the Administrative Appeals
31
Tribunal Act 1975 has effect as if a corresponding State-Territory
32
law were an enactment.
33
Section 17
14 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
17 References in instruments to the National Law
1
(1) A reference in any Act or instrument to the Marine Safety
2
(Domestic Commercial Vessel) National Law is a reference to:
3
(a) the Marine Safety (Domestic Commercial Vessel) National
4
Law as applied under section 4; and
5
(b) a corresponding State-Territory law.
6
(2) Subsection (1) has effect except so far as the contrary intention
7
appears in the Act or instrument or the context of the reference
8
otherwise requires.
9
18 Powers of magistrates
10
(1) A power conferred on a magistrate by the Marine Safety (Domestic
11
Commercial Vessel) National Law of the Commonwealth is
12
conferred on the magistrate:
13
(a) in a personal capacity; and
14
(b) not as a court or a member of a court.
15
(2) The magistrate need not accept the power conferred.
16
(3) A magistrate exercising a power conferred by the Marine Safety
17
(Domestic Commercial Vessel) National Law of the
18
Commonwealth has the same protection and immunity as if he or
19
she were exercising the power:
20
(a) as the court of which the magistrate is a member; or
21
(b) as a member of the court of which the magistrate is a
22
member.
23
19 Regulations
24
The Governor-General may make regulations prescribing matters:
25
(a) required or permitted by the local application provisions of
26
this Act to be prescribed; or
27
(b) necessary or convenient to be prescribed for carrying out or
28
giving effect to the local application provisions of this Act.
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 1
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 15
Schedule 1--Marine Safety (Domestic
1
Commercial Vessel) National Law
2
Note: See
section
4.
3
Part 1--Preliminary
4
5
1 Short title
6
This Law may be cited as the Marine Safety (Domestic
7
Commercial Vessel) National Law.
8
2 Commencement
9
This Law commences as a law of this jurisdiction as provided by
10
the Act of this jurisdiction that applies this Law as a law of this
11
jurisdiction.
12
3 Objects of Law
13
The objects of this Law are as follows:
14
(a) to form a part of a cooperative scheme between the
15
Commonwealth, the States and the Northern Territory that
16
provides a single national framework for ensuring the safe
17
operation, design, construction and equipping of domestic
18
commercial vessels;
19
(b) to implement Australia's international obligations in relation
20
to the safety of domestic commercial vessels;
21
(c) to facilitate the development of a safety culture that will
22
prevent, or mitigate the effects of, marine incidents;
23
(d) to provide a framework for the development and application
24
of consistent national standards relating to the operation,
25
design, construction and equipping of domestic commercial
26
vessels;
27
(e) to enhance the efficient and orderly operation of domestic
28
commercial vessels;
29
(f) to provide an effective enforcement framework.
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 1 Preliminary
Section 4
16 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
4 Law binds the Crown
1
(1) This Law binds the Crown in each of its capacities.
2
(2) This Law does not make the Crown liable to a pecuniary penalty or
3
to be prosecuted for an offence.
4
5 Extended geographical jurisdiction--category A
5
Section 15.1 of the Criminal Code (extended geographical
6
jurisdiction--category A) applies to an offence against this Law.
7
6 Definitions
8
In this Law:
9
accredited person means a person who is accredited in accordance
10
with regulations made for the purposes of section 160.
11
acquisition of property has the same meaning as in paragraph
12
51(xxxi) of the Constitution of the Commonwealth.
13
agency:
14
(a) of the Commonwealth, includes the following:
15
(i) an Agency within the meaning of the Financial
16
Management and Accountability Act 1997 of the
17
Commonwealth;
18
(ii) a body corporate established for a public purpose by or
19
under a law of the Commonwealth; and
20
(b) of a State or a Territory, includes the following:
21
(i) a Department of State (however described) of the State
22
or Territory;
23
(ii) a body corporate established for a public purpose by or
24
under a law of the State or Territory.
25
approved training organisation means a training organisation that
26
is approved in accordance with regulations made for the purposes
27
of section 160.
28
certificate means any of the following:
29
(a) a certificate of operation;
30
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 6
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 17
(b) a certificate of survey;
1
(c) a certificate of competency.
2
certificate of competency means a certificate issued under
3
section 60.
4
certificate of operation means a certificate issued under section 48.
5
certificate of survey means a certificate issued under section 38.
6
close quarters situation means a situation in which vessels pass
7
each other, or a vessel passes another vessel, a person or an object,
8
in such proximity that a reasonable person would conclude that in
9
all the circumstances there was a risk of an imminent collision.
10
COAG means the Council of Australian Governments.
11
COAG Council means the council established by COAG that has
12
responsibility for marine safety.
13
Commonwealth Minister means the Minister of State of the
14
Commonwealth administering this Law.
15
company has the same meaning as in the Income Tax Assessment
16
Act 1997 of the Commonwealth.
17
Note: Under
the
Income Tax Assessment Act 1997 of the Commonwealth,
18
company includes an unincorporated association or body of persons.
19
crew of a vessel means individuals employed or engaged in any
20
capacity on board the vessel on the business of the vessel, other
21
than the master of the vessel or a pilot.
22
Criminal Code means the Criminal Code of the Commonwealth.
23
defence vessel means a warship or other vessel that:
24
(a) is operated for naval or military purposes by the Australian
25
Defence Force or the armed forces of a foreign country; and
26
(b) bears external marks of nationality; and
27
(c) is manned by seafarers under armed forces discipline
28
(however described).
29
domestic commercial vessel: see section 7.
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 1 Preliminary
Section 6
18 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
enforcement powers: see section 105.
1
enforcement warrant means:
2
(a) a warrant issued under section 135; or
3
(b) a warrant signed by a magistrate under section 136.
4
entity means any of the following:
5
(a)
an
individual;
6
(b)
a
company;
7
(c)
a
trust;
8
(d)
a
partnership;
9
(e) a corporation sole;
10
(f) a body politic.
11
evidential material means:
12
(a) a thing with respect to which an offence against this Law has
13
been committed or is suspected, on reasonable grounds, of
14
having been committed; or
15
(b) a thing that there are reasonable grounds for suspecting will
16
afford evidence as to the commission of an offence against
17
this Law; or
18
(c) a thing that there are reasonable grounds for suspecting is
19
intended to be used for the purpose of committing an offence
20
against this Law.
21
foreign vessel has the same meaning as in the Navigation Act 2012
22
of the Commonwealth.
23
general monitoring powers: see section 104.
24
hire and drive vessel means any vessel which is let for hire or
25
reward or for any other consideration, including vessels provided
26
in conjunction with holiday establishments or hotels for the use of
27
guests or tenants.
28
hirer of a hire and drive vessel means:
29
(a) a person who hires the vessel; or
30
(b) a person, other than the owner of the vessel or a person acting
31
on the owner's behalf, who operates the vessel while it is
32
under hire.
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 6
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 19
improvement notice means an improvement notice issued under
1
section 110.
2
infringement notice means:
3
(a) a notice that:
4
(i) is given under regulations made for the purposes of
5
section 138 to a person alleged to have committed an
6
offence against this Law; and
7
(ii) states that if the person pays a specified amount within a
8
specified period the person will not be liable to be
9
prosecuted for the offence; or
10
(b) a notice that:
11
(i) is given under regulations made for the purposes of
12
section 162(3) to a person alleged to have contravened a
13
provision described in that subsection; and
14
(ii) states that if the person pays a specified amount within a
15
specified period the person will not be liable to
16
proceedings for a civil penalty for the contravention.
17
just terms has the same meaning as in paragraph 51(xxxi) of the
18
Constitution of the Commonwealth.
19
marine incident means any of the following:
20
(a) a death of, or injury to, a person associated with the operation
21
or navigation of a domestic commercial vessel;
22
(b) the loss or presumed loss of a domestic commercial vessel;
23
(c) a collision of a domestic commercial vessel with another
24
vessel;
25
(d) a collision by a domestic commercial vessel with an object;
26
(e) the grounding, sinking, flooding or capsizing of a domestic
27
commercial vessel;
28
(f) a fire on board a domestic commercial vessel;
29
(g) a loss of stability of a domestic commercial vessel that
30
affects the safety of the vessel;
31
(h) the structural failure of a domestic commercial vessel;
32
(i) a close quarters situation;
33
(j) an event that results in, or could have resulted in:
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 1 Preliminary
Section 6
20 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(i) the death of, or injury to, a person on board a domestic
1
commercial vessel; or
2
(ii) the loss of a person from a domestic commercial vessel;
3
or
4
(iii) a domestic commercial vessel becoming disabled and
5
requiring assistance;
6
(k) the fouling or damaging by a domestic commercial vessel of:
7
(i) any pipeline or submarine cable; or
8
(ii) any aid to navigation within the meaning of the
9
Navigation Act 2012 of the Commonwealth;
10
(l) a prescribed incident involving a domestic commercial
11
vessel.
12
marine safety equipment means equipment designed or used to
13
prevent a marine incident, or mitigate the consequences of a
14
marine incident, and includes, but is not limited to, the following
15
things carried or installed on a domestic commercial vessel:
16
(a) personal flotation devices;
17
(b)
telecommunications
systems;
18
(c) flares and other devices that can be used to attract attention to
19
the vessel or indicate the vessel's position;
20
(d) position identification systems;
21
(e) anchors and other devices that may be used to maintain the
22
vessel's position or stability;
23
(f) oars and other alternative means of propulsion;
24
(g)
fire
extinguishers;
25
(h)
lights;
26
(i) thermal protective aids;
27
(j) such other equipment as is prescribed by the regulations.
28
marine safety inspector means:
29
(a) a person appointed as an inspector under section 91; or
30
(b) a member of the Australian Federal Police; or
31
(c) a member of the police force (however described) of a State
32
or a Territory.
33
master of a vessel means the person who has command or charge
34
of the vessel, but does not include a pilot.
35
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 6
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 21
monitoring purposes means one or more of the following:
1
(a) finding out whether this Law is being, or has been, complied
2
with;
3
(b) assessing the correctness of information provided under this
4
Law;
5
(c) investigating a marine incident.
6
monitoring warrant means a warrant issued under section 134.
7
National Marine Safety Regulator: see section 9.
8
National Regulator: see section 9.
9
National Standard for Commercial Vessels means the National
10
Standard for Commercial Vessels adopted by:
11
(a) the COAG Council; or
12
(b) if no such entity exists--the entity prescribed by the
13
regulations for the purposes of this paragraph.
14
occupier, in relation to premises, includes:
15
(a) a person who apparently represents the occupier of the
16
premises; and
17
(b) if the premises are a vessel--the master of the vessel.
18
offence against this Law includes an offence against the Crimes
19
Act 1914 of the Commonwealth or the Criminal Code that relates
20
to this Law.
21
operate a vessel means:
22
(a) determine or exercise control over the course or direction of
23
the vessel or over the means of propulsion of the vessel,
24
whether or not the vessel is underway; or
25
(b) load or unload the vessel when it is moored or berthed.
26
owner of a vessel includes:
27
(a) a person who has a legal or beneficial interest in the vessel,
28
other than as a mortgagee; and
29
(b) a person with overall general control and management of the
30
vessel.
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 1 Preliminary
Section 6
22 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
For this purpose, a person is not taken to have overall general
1
control and management of a vessel merely because he or she is the
2
master or pilot of the vessel.
3
partnership has the same meaning as in the Income Tax
4
Assessment Act 1997 of the Commonwealth.
5
personal information means information or an opinion (including
6
information or an opinion forming part of a database), whether true
7
or not, and whether recorded in a material form or not, about an
8
individual whose identity is apparent, or can reasonably be
9
ascertained, from the information or opinion.
10
person assisting a marine safety inspector: see section 114.
11
pilot means a person who does not belong to, but has the conduct
12
of, a vessel.
13
premises includes the following:
14
(a) a structure, building, vehicle, vessel or aircraft;
15
(b) a place (whether or not enclosed or built on);
16
(c) a part of a thing referred to in paragraph (a) or (b).
17
prohibition notice means a prohibition notice issued under
18
section 111.
19
regulated Australian vessel has the same meaning as in the
20
Navigation Act 2012 of the Commonwealth.
21
reviewable decision: see section 139.
22
this Law includes the regulations and any other legislative
23
instrument made under this Law.
24
trust means a person in the capacity of trustee or, as the case
25
requires, a trust estate.
26
trustee has the same meaning as in the Income Tax Assessment Act
27
1997 of the Commonwealth.
28
Uniform Shipping Laws Code means the Uniform Shipping Laws
29
Code adopted by:
30
(a) the COAG Council; or
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 7
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 23
(b) if no such entity exists--the entity prescribed by the
1
regulations for the purposes of this paragraph.
2
unique identifier, in relation to a vessel, means a unique identifier
3
issued under section 31.
4
unsafe vessel means a vessel that is likely to endanger any person
5
for any reason, including because of:
6
(a) the condition or equipment of the vessel; or
7
(b) the manner or place in which cargo or equipment on the
8
vessel is stowed or secured; or
9
(c) the nature of the cargo; or
10
(d) the overloading of the vessel with people or cargo (including
11
the submergence of the vessel's load line); or
12
(e) the number of its crew or the qualifications of its crew or
13
master.
14
vessel: see section 8.
15
vessel monitoring powers: see section 99.
16
warrant means a monitoring warrant or an enforcement warrant.
17
7 Definition of domestic commercial vessel
18
(1) In this Law:
19
domestic commercial vessel means a vessel that is for use in
20
connection with a commercial, governmental or research activity.
21
(2) The use of a vessel in connection with an activity that is not a
22
commercial, governmental or research activity at the same time as
23
the vessel is used in connection with a commercial, governmental
24
or research activity does not prevent the vessel from being a
25
domestic commercial vessel.
26
(3) Despite subsection (1), a vessel is not a domestic commercial
27
vessel if the vessel:
28
(a) is a regulated Australian vessel; or
29
(b) is a foreign vessel; or
30
(c) is a defence vessel; or
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 1 Preliminary
Section 8
24 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(d) is owned by:
1
(i) a primary or secondary school; or
2
(ii) a community group of a kind prescribed by the
3
regulations.
4
Note:
Generally an Australian vessel will be a regulated Australian vessel if
5
it voyages outside Australia's exclusive economic zone at any time.
6
Regulated Australian vessels are dealt with by the Navigation Act
7
2012 of the Commonwealth rather than this Law.
8
(4) Despite subsection (3)(d), a vessel covered by that subsection is a
9
domestic commercial vessel at any time when it is being used for:
10
(a) a purpose prescribed by the regulations; or
11
(b) an activity prescribed by the regulations.
12
(5) Despite subsections (1) and (2), the regulations may provide as
13
follows:
14
(a) that a specified thing, or a thing included in a specified class,
15
is a domestic commercial vessel;
16
(b) that a specified thing, or a thing included in a specified class,
17
is not a domestic commercial vessel.
18
(6) Regulations made for the purposes of subsection (3)(d)(ii) may
19
prescribe a kind by reference to a decision of the National
20
Regulator.
21
(7) A vessel in the course of construction is a domestic commercial
22
vessel if the vessel is, after completion, for use as a domestic
23
commercial vessel.
24
(8) For the purposes of subsection (7), a vessel that has been launched,
25
but has not been completed and delivered under the relevant
26
building contract, is taken to be a vessel in the course of
27
construction.
28
8 Definition of vessel
29
(1) In this Law:
30
vessel means a craft for use, or that is capable of being used, in
31
navigation by water, however propelled or moved, and includes an
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Preliminary Part 1
Section 8
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 25
air-cushion vehicle, a barge, a lighter, a submersible, a ferry in
1
chains and a wing-in-ground effect craft.
2
(2) Despite subsection (1), none of the following is a vessel:
3
(a)
an
aircraft;
4
(b) a thing that is a facility for the purposes of Schedule 3 to the
5
Offshore Petroleum and Greenhouse Gas Storage Act 2006
6
of the Commonwealth.
7
(3) Despite subsections (1) and (2), the regulations may provide as
8
follows:
9
(a) that a specified thing, or a thing included in a specified class,
10
is a vessel;
11
(b) that a specified thing, or a thing included in a specified class,
12
is not a vessel.
13
14
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 2 The National Marine Safety Regulator
Section 9
26 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Part 2--The National Marine Safety Regulator
1
2
9 The National Marine Safety Regulator
3
The Australian Maritime Safety Authority is the National Marine
4
Safety Regulator (referred to in this Act as the National
5
Regulator).
6
Note:
The Australian Maritime Safety Authority is established by the
7
Australian Maritime Safety Authority Act 1990 of the Commonwealth.
8
Section 10 of that Act sets out the general powers of the Authority.
9
10 Functions of the National Regulator
10
The National Regulator has the following functions:
11
(a) to make and maintain Marine Orders made under
12
section 163;
13
(b) to develop and maintain national standards, guidelines and
14
codes of practice relating to marine safety;
15
(c) to issue unique identifiers and certificates for the purposes of
16
this Law and perform other functions in relation to such
17
identifiers and certificates;
18
(d) to accredit persons and approve training organisations for the
19
purposes of this Law;
20
(e) to undertake investigation, monitoring and enforcement
21
activities under or for the purposes of this Law;
22
(f) to consult appropriate authorities of the States and
23
Territories, and other persons, associations and organisations,
24
on matters related to the activities of the National Regulator;
25
(g) to collect and distribute information, and provide advice, to:
26
(i) the Commonwealth Minister; and
27
(ii) the States and Territories; and
28
(iii)
the
public;
29
on matters related to the activities of the National Regulator
30
and the operation of this Law;
31
(h) to develop or commission education programs relating to
32
marine safety;
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
The National Marine Safety Regulator Part 2
Section 11
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 27
(i) to collect, analyse and disseminate data relating to marine
1
safety;
2
(j) such other functions as are conferred on the National
3
Regulator by this Law or any other law (including a law of
4
the Commonwealth, a State or the Northern Territory);
5
(k) to perform functions incidental to any of the previously
6
described functions.
7
11 Delegation
8
(1) The National Regulator may, by writing, delegate one or more of
9
the National Regulator's powers or functions under this Law to one
10
or more of the following:
11
(a) an officer or employee of an agency of the Commonwealth;
12
(b) an officer or employee of an agency of a State or the
13
Northern Territory.
14
(2) A delegate of the National Regulator is subject to the National
15
Regulator's directions in the exercise of delegated powers and the
16
performance of delegated functions.
17
(3) A person (the delegate) to whom a power or function is delegated
18
under subsection (1) may, by writing, sub-delegate that power or
19
function to another officer or employee (the sub-delegate) of the
20
agency of which the delegate is an officer or employee.
21
(4) A sub-delegate is subject to the directions of the delegate in the
22
exercise of delegated powers and the performance of delegated
23
functions.
24
(5) If the delegate is subject to a direction by the National Regulator in
25
relation to the performance of the function or the exercise of the
26
power sub-delegated under subsection (3), the delegate must give a
27
corresponding direction to the sub-delegate.
28
(6) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
29
of the Commonwealth apply to a sub-delegation in the same way
30
as they apply to a delegation.
31
(7) The National Regulator must not delegate a power or function
32
under subsection (1) to an officer or employee of an agency of a
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 2 The National Marine Safety Regulator
Section 11
28 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
State or the Northern Territory without the agreement of the State
1
or the Northern Territory, as the case requires.
2
3
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of owners Division 1
Section 12
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 29
Part 3--General safety duties relating to domestic
1
commercial vessels
2
Division 1--Duties of owners
3
12 Duty of owners of domestic commercial vessels to ensure safety of
4
vessels, marine safety equipment and operations
5
(1) An owner of a domestic commercial vessel must, so far as
6
reasonably practicable, ensure the safety of:
7
(a) the vessel; and
8
(b) marine safety equipment that relates to the vessel; and
9
(c) the operation of the vessel.
10
(2) Without limiting subsection (1), an owner of a domestic
11
commercial vessel contravenes that subsection if:
12
(a) the owner does not provide or maintain the vessel so that the
13
vessel is, so far as reasonably practicable, safe; or
14
(b) the owner does not implement and maintain a safety
15
management system that ensures that the vessel and the
16
operations of the vessel are, so far as reasonably practicable,
17
safe; or
18
(c) the owner does not provide, so far as reasonably practicable,
19
such information, instruction, training or supervision to
20
people on board the vessel as is necessary to ensure their
21
safety.
22
(3) Without limiting subsection (1), an owner of a domestic
23
commercial vessel contravenes that subsection if:
24
(a) the owner operates the vessel, or causes or allows the vessel
25
to be operated; and
26
(b) the vessel is an unsafe vessel.
27
(4) Without limiting subsection (1), an owner of a domestic
28
commercial vessel contravenes that subsection if the owner
29
prevents or restricts the master of the vessel from making or
30
implementing a decision that, in the professional opinion of the
31
master, is necessary for the safety of a person or the vessel.
32
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 1 Duties of owners
Section 13
30 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
13 Offences relating to contraventions of section 12
1
(1) A person commits an offence if:
2
(a) the person does an act or omits to do an act; and
3
(b) the act or omission contravenes section 12(1); and
4
(c) the person intends the act or omission to be a risk to the
5
safety of a person or the domestic commercial vessel
6
concerned.
7
Penalty: Imprisonment for 2 years or 1,800 penalty units, or both.
8
(2) A person commits an offence if:
9
(a) the person does an act or omits to do an act; and
10
(b) the act or omission contravenes section 12(1); and
11
(c) the person is reckless as to whether the act or omission is a
12
risk to the safety of a person or the domestic commercial
13
vessel concerned.
14
Penalty: 200 penalty units.
15
(3) A person commits an offence if:
16
(a) the person does an act or omits to do an act; and
17
(b) the act or omission contravenes section 12(1); and
18
(c) the person is negligent as to whether the act or omission is a
19
risk to the safety of a person or the domestic commercial
20
vessel concerned.
21
Penalty: 120 penalty units.
22
(4) A person commits an offence if:
23
(a) the person does an act or omits to do an act; and
24
(b) the act or omission contravenes section 12(1).
25
Penalty: 60 penalty units.
26
(5) An offence against subsection (4) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of designers, builders, suppliers etc. Division 2
Section 14
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 31
Division 2--Duties of designers, builders, suppliers etc.
1
14 Duty relating to design, manufacture etc. of domestic commercial
2
vessels
3
A person who designs, commissions, constructs, manufactures,
4
supplies, maintains, repairs or modifies a domestic commercial
5
vessel, or marine safety equipment that relates to such a vessel,
6
must:
7
(a) ensure, so far as reasonably practicable, that the vessel or
8
equipment is safe if used for a purpose for which it was
9
designed, commissioned, constructed, manufactured,
10
supplied, maintained, repaired or modified, as the case may
11
be; and
12
(b)
either:
13
(i) carry out, or arrange the carrying out of, such testing
14
and examination as may be necessary for compliance
15
with paragraph (a); or
16
(ii) ensure that such testing and examination has been
17
carried out; and
18
(c) take such action as is necessary to ensure that there will be
19
available, in connection with the use of the vessel or
20
equipment, adequate information about:
21
(i) the use for which the vessel or equipment was designed,
22
commissioned, constructed, manufactured, supplied,
23
maintained, repaired or modified, as the case may be;
24
and
25
(ii) the results of any testing or examination referred to in
26
paragraph (b); and
27
(iii) any conditions necessary to ensure the vessel or
28
equipment is safe if it is used for a purpose for which it
29
was designed, commissioned, constructed,
30
manufactured, supplied, maintained, repaired or
31
modified, as the case may be.
32
15 Offences relating to contraventions of section 14
33
(1) A person commits an offence if:
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 2 Duties of designers, builders, suppliers etc.
Section 15
32 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) the person does an act or omits to do an act; and
1
(b) the act or omission contravenes section 14; and
2
(c) the person intends the act or omission to be a risk to the
3
safety of a person or the domestic commercial vessel
4
concerned.
5
Penalty: Imprisonment for 2 years or 1,800 penalty units, or both.
6
(2) A person commits an offence if:
7
(a) the person does an act or omits to do an act; and
8
(b) the act or omission contravenes section 14; and
9
(c) the person is reckless as to whether the act or omission is a
10
risk to the safety of a person or the domestic commercial
11
vessel concerned.
12
Penalty: 200 penalty units.
13
(3) A person commits an offence if:
14
(a) the person does an act or omits to do an act; and
15
(b) the act or omission contravenes section 14; and
16
(c) the person is negligent as to whether the act or omission is a
17
risk to the safety of a person or the domestic commercial
18
vessel concerned.
19
Penalty: 120 penalty units.
20
(4) A person commits an offence if:
21
(a) the person does an act or omits to do an act; and
22
(b) the act or omission contravenes section 14.
23
Penalty: 60 penalty units.
24
(5) An offence against subsection (4) is an offence of strict liability.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
27
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of masters Division 3
Section 16
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 33
Division 3--Duties of masters
1
16 Duty of masters of domestic commercial vessels to ensure safety
2
of vessels, marine safety equipment and operations
3
(1) The master of a domestic commercial vessel must, so far as
4
reasonably practicable, ensure the safety of:
5
(a) the vessel; and
6
(b) marine safety equipment that relates to the vessel; and
7
(c) the operation of the vessel.
8
(2) Without limiting subsection (1), the master of a domestic
9
commercial vessel contravenes that subsection if the master does
10
not, so far as reasonably practicable, implement and comply with
11
the safety management system for the vessel and the operations of
12
the vessel.
13
(3) Without limiting subsection (1), the master of a domestic
14
commercial vessel contravenes that subsection if:
15
(a) the master operates the vessel, or causes or allows the vessel
16
to be operated; and
17
(b) the vessel is an unsafe vessel.
18
(4) Without limiting subsection (1), the master of a domestic
19
commercial vessel contravenes that subsection if, when carrying
20
out duties as master or doing anything in relation to the vessel, the
21
master interferes with or misuses anything provided on the vessel
22
in the interests of the safety of the vessel.
23
(5) Subsection (1) does not apply if:
24
(a) the vessel is a hire and drive vessel being used wholly for
25
recreational purposes; and
26
(b) the master of the vessel is a hirer of the vessel.
27
17 Duty of masters of domestic commercial vessels to take
28
reasonable care for safety of persons
29
(1) The master of a domestic commercial vessel must, when carrying
30
out duties as master of the vessel:
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 3 Duties of masters
Section 18
34 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) take reasonable care for his or her own safety; and
1
(b) take reasonable care for the safety of persons who may be
2
affected by his or her acts or omissions.
3
(2) The master of a domestic commercial vessel must not
4
unreasonably place the safety of another person at risk when
5
carrying out duties as master of the vessel.
6
(3) Subsections (1) and (2) do not apply if:
7
(a) the vessel is a hire and drive vessel being used wholly for
8
recreational purposes; and
9
(b) the master of the vessel is a hirer of the vessel.
10
18 Offences relating to contraventions of section 16 or 17
11
(1) A person commits an offence if:
12
(a) the person does an act or omits to do an act; and
13
(b) the act or omission contravenes section 16(1) or 17(1) or (2);
14
and
15
(c) the person intends the act or omission to be a risk to the
16
safety of a person or the domestic commercial vessel
17
concerned.
18
Penalty: Imprisonment for 2 years or 1,800 penalty units, or both.
19
(2) A person commits an offence if:
20
(a) the person does an act or omits to do an act; and
21
(b) the act or omission contravenes section 16(1) or 17(1) or (2);
22
and
23
(c) the person is reckless as to whether the act or omission is a
24
risk to the safety of a person or the domestic commercial
25
vessel concerned.
26
Penalty: 200 penalty units.
27
(3) A person commits an offence if:
28
(a) the person does an act or omits to do an act; and
29
(b) the act or omission contravenes section 16(1) or 17(1) or (2);
30
and
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of masters Division 3
Section 18
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 35
(c) the person is negligent as to whether the act or omission is a
1
risk to the safety of a person or the domestic commercial
2
vessel concerned.
3
Penalty: 120 penalty units.
4
(4) A person commits an offence if:
5
(a) the person does an act or omits to do an act; and
6
(b) the act or omission contravenes section 16(1) or 17(1) or (2).
7
Penalty: 60 penalty units.
8
(5) An offence against subsection (4) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
11
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 4 Duties of crew
Section 19
36 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 4--Duties of crew
1
19 Duty of crew of domestic commercial vessels to take reasonable
2
care for safety of persons, etc.
3
(1) A member of the crew of a domestic commercial vessel, when
4
carrying out duties as a member of the crew, must:
5
(a) take reasonable care for his or her own safety; and
6
(b) take reasonable care for the safety of persons who may be
7
affected by his or her acts or omissions; and
8
(c) comply with any reasonable and lawful directions of the
9
master of the vessel or a supervisor.
10
(2) A member of the crew of a domestic commercial vessel must not
11
interfere with or misuse anything provided on the vessel in the
12
interests of the safety of the vessel.
13
(3) A member of the crew of a domestic commercial vessel must not
14
unreasonably place the safety of another person at risk when
15
carrying out duties as a member of the crew.
16
(4) Without limiting subsection (1), a member of the crew of a
17
domestic commercial vessel contravenes that subsection if the
18
member of the crew prevents or restricts the master of the vessel
19
from making or implementing a decision that, in the professional
20
opinion of the master, is necessary for the safety of a person or the
21
vessel.
22
20 Offences relating to contraventions of section 19
23
(1) A person commits an offence if:
24
(a) the person does an act or omits to do an act; and
25
(b) the act or omission contravenes section 19(1), (2) or (3); and
26
(c) the person intends the act or omission to be a risk to the
27
safety of a person or the domestic commercial vessel
28
concerned.
29
Penalty: Imprisonment for 2 years or 1,800 penalty units, or both.
30
(2) A person commits an offence if:
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of crew Division 4
Section 20
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 37
(a) the person does an act or omits to do an act; and
1
(b) the act or omission contravenes section 19(1), (2) or (3); and
2
(c) the person is reckless as to whether the act or omission is a
3
risk to the safety of a person or the domestic commercial
4
vessel concerned.
5
Penalty: 200 penalty units.
6
(3) A person commits an offence if:
7
(a) the person does an act or omits to do an act; and
8
(b) the act or omission contravenes section 19(1), (2) or (3); and
9
(c) the person is negligent as to whether the act or omission is a
10
risk to the safety of a person or the domestic commercial
11
vessel concerned.
12
Penalty: 120 penalty units.
13
(4) A person commits an offence if:
14
(a) the person does an act or omits to do an act; and
15
(b) the act or omission contravenes section 19(1), (2) or (3).
16
Penalty: 60 penalty units.
17
(5) An offence against subsection (4) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
20
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 5 Duties of passengers
Section 21
38 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 5--Duties of passengers
1
21 Duty of passengers on domestic commercial vessels to take
2
reasonable care for safety of persons, etc.
3
(1) A passenger on board a domestic commercial vessel must:
4
(a) take reasonable care for his or her safety; and
5
(b) comply with any reasonable and lawful directions of the
6
master or a member of the crew of the vessel, if the passenger
7
has been advised that non-compliance may constitute an
8
offence.
9
(2) A passenger on board a domestic commercial vessel must not
10
interfere with or misuse anything provided on the vessel in the
11
interests of the safety of the vessel.
12
(3) A passenger on board a domestic commercial vessel must not
13
unreasonably place at risk the safety of another person.
14
(4) Without limiting subsection (1), a passenger on board a domestic
15
commercial vessel contravenes that subsection if the passenger
16
prevents or restricts the master of the vessel from making or
17
implementing a decision that, in the professional opinion of the
18
master, is necessary for the safety of a person or the vessel.
19
22 Offences relating to contraventions of section 21
20
(1) A person commits an offence if:
21
(a) the person does an act or omits to do an act; and
22
(b) the act or omission contravenes section 21(1), (2) or (3); and
23
(c) the person intends the act or omission to be a risk to the
24
safety of a person or the domestic commercial vessel
25
concerned.
26
Penalty: Imprisonment for 12 months or 200 penalty units, or
27
both.
28
(2) A person commits an offence if:
29
(a) the person does an act or omits to do an act; and
30
(b) the act or omission contravenes section 21(1), (2) or (3); and
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Duties of passengers Division 5
Section 22
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 39
(c) the person is reckless as to whether the act or omission is a
1
risk to the safety of a person or the domestic commercial
2
vessel concerned.
3
Penalty: 160 penalty units.
4
(3) A person commits an offence if:
5
(a) the person does an act or omits to do an act; and
6
(b) the act or omission contravenes section 21(1), (2) or (3); and
7
(c) the person is negligent as to whether the act or omission is a
8
risk to the safety of a person or the domestic commercial
9
vessel concerned.
10
Penalty: 120 penalty units.
11
(4) A person commits an offence if:
12
(a) the person does an act or omits to do an act; and
13
(b) the act or omission contravenes section 21(1), (2) or (3).
14
Penalty: 60 penalty units.
15
(5) An offence against subsection (4) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
18
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 6 Other duties
Section 23
40 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 6--Other duties
1
23 Duty of persons relating to safety of persons on domestic
2
commercial vessels, etc.
3
(1) A person embarking on, on board or disembarking from a domestic
4
commercial vessel must take reasonable care for his or her own
5
safety.
6
(2) Without limiting subsection (1), a person contravenes that
7
subsection if the person prevents or restricts the master of the
8
vessel from making or implementing a decision that, in the
9
professional opinion of the master, is necessary for the safety of the
10
person.
11
(3) A person must take reasonable care that his or her acts and
12
omissions do not adversely affect the safety of another person if
13
that other person:
14
(a) is on board a domestic commercial vessel; or
15
(b) is taking an action connected with a domestic commercial
16
vessel.
17
(4) Without limiting subsection (3), a person contravenes that
18
subsection if the person prevents or restricts the master of the
19
vessel from making or implementing a decision that, in the
20
professional opinion of the master, is necessary for the safety of
21
another person referred to in that subsection.
22
24 Offences relating to contraventions of section 23
23
(1) A person commits an offence if:
24
(a) the person does an act or omits to do an act; and
25
(b) the act or omission contravenes section 23(1) or (3); and
26
(c) the person intends the act or omission to be a risk to the
27
safety of a person.
28
Penalty: Imprisonment for 12 months or 200 penalty units, or
29
both.
30
(2) A person commits an offence if:
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
Other duties Division 6
Section 25
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 41
(a) the person does an act or omits to do an act; and
1
(b) the act or omission contravenes section 23(1) or (3); and
2
(c) the person is reckless as to whether the act or omission is a
3
risk to the safety of a person.
4
Penalty: 160 penalty units.
5
(3) A person commits an offence if:
6
(a) the person does an act or omits to do an act; and
7
(b) the act or omission contravenes section 23(1) or (3); and
8
(c) the person is negligent as to whether the act or omission is a
9
risk to the safety of a person.
10
Penalty: 120 penalty units.
11
(4) A person commits an offence if:
12
(a) the person does an act or omits to do an act; and
13
(b) the act or omission contravenes section 23(1) or (3).
14
Penalty: 60 penalty units.
15
(5) An offence against subsection (4) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
25 Duty of persons in relation to domestic commercial vessels
18
(1) A person must not unreasonably cause, or do an act or omit to do
19
an act that may cause, the loss or destruction of, or serious damage
20
to, a domestic commercial vessel.
21
(2) A person must take such actions as are reasonably practicable to
22
prevent the loss or destruction of, or serious damage to, a domestic
23
commercial vessel.
24
(3) Without limiting subsection (1), a person contravenes that
25
subsection if the person prevents or restricts the master of the
26
vessel from making or implementing a decision that, in the
27
professional opinion of the master, is necessary for the safety of the
28
vessel.
29
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 3 General safety duties relating to domestic commercial vessels
Division 6 Other duties
Section 26
42 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
26 Offences relating to contraventions of section 25
1
(1) A person commits an offence if:
2
(a) the person does an act or omits to do an act; and
3
(b) the act or omission contravenes section 25(1) or (2); and
4
(c) the person intends the act or omission to cause the loss or
5
destruction of, or serious damage to, the domestic
6
commercial vessel concerned.
7
Penalty: Imprisonment for 12 months or 200 penalty units, or
8
both.
9
(2) A person commits an offence if:
10
(a) the person does an act or omits to do an act; and
11
(b) the act or omission contravenes section 25(1) or (2); and
12
(c) the person is reckless as to whether the act or omission will
13
cause the loss or destruction of, or serious damage to, the
14
domestic commercial vessel concerned.
15
Penalty: 160 penalty units.
16
(3) A person commits an offence if:
17
(a) the person does an act or omits to do an act; and
18
(b) the act or omission contravenes section 25(1) or (2); and
19
(c) the person is negligent as to whether the act or omission will
20
cause the loss or destruction of, or serious damage to, the
21
domestic commercial vessel concerned.
22
Penalty: 120 penalty units.
23
(4) A person commits an offence if:
24
(a) the person does an act or omits to do an act; and
25
(b) the act or omission contravenes section 25(1) or (2).
26
Penalty: 60 penalty units.
27
(5) An offence against subsection (4) is an offence of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
30
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General safety duties relating to domestic commercial vessels Part 3
General provisions Division 7
Section 27
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 43
Division 7--General provisions
1
27 Determining what is reasonably practicable to ensure safety
2
In this Law, reasonably practicable, in relation to a duty imposed
3
upon a person to ensure safety, means that which is, or was at a
4
particular time, reasonably able to be done in relation to ensuring
5
safety, taking into account and weighing up all relevant matters,
6
including:
7
(a) the likelihood of the hazard or risk concerned eventuating;
8
and
9
(b) the degree of harm that might result from the hazard or risk
10
concerned eventuating; and
11
(c) what the person concerned knows, or ought reasonably to
12
know, about:
13
(i) the hazard or the risk concerned; and
14
(ii) ways of eliminating or minimising the hazard or risk
15
concerned; and
16
(d) the availability and suitability of ways to eliminate or
17
minimise the hazard or risk concerned; and
18
(e) after assessing the extent of the hazard or risk concerned and
19
the available ways of eliminating or minimising the hazard or
20
risk concerned, the cost associated with available ways of
21
eliminating or minimising the hazard or risk concerned,
22
including whether the cost is grossly disproportionate to the
23
hazard or risk concerned.
24
28 Functions and powers of marine safety inspectors not affected
25
To avoid doubt, subsections 17(4), 18(2) and (4) and 19(3) do not
26
affect the performance of a function or the exercise of a power
27
under this Law by a marine safety inspector.
28
29 Requirements imposed by this Part do not limit one another
29
The requirements imposed by this Part do not limit one another.
30
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 1 Unique identifiers
Section 30
44 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Part 4--Vessel identifiers and certificates for
1
vessels and seafarers
2
Division 1--Unique identifiers
3
30 Person may apply for unique identifier
4
(1) A person may apply to the National Regulator for a unique
5
identifier for a domestic commercial vessel.
6
(2) The application must be in accordance with the regulations and
7
must be accompanied by the fee prescribed by the regulations (if
8
any).
9
Note:
Regulations could provide for the application to be made in
10
conjunction with an application for a certificate (for example, a
11
certificate of operation).
12
31 Issue of unique identifier
13
(1) The National Regulator must, by written instrument, issue a unique
14
identifier for a domestic commercial vessel if:
15
(a) an application for the unique identifier has been made under
16
section 30; and
17
(b) the National Regulator is satisfied that the criteria prescribed
18
by the regulations are met in relation to the issue of the
19
unique identifier.
20
(2) Without limiting the criteria that may be prescribed, the regulations
21
are to include criteria relating to the identification of the vessel.
22
(3) A unique identifier comes into force on the day specified in the
23
written instrument or, if no day is so specified, on the day on which
24
it is issued.
25
32 Offence--operating etc. a vessel without a unique identifier
26
(owner)
27
(1) The owner of a domestic commercial vessel commits an offence if:
28
(a)
the
owner:
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Unique identifiers Division 1
Section 33
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 45
(i) operates the vessel, or causes or permits the vessel to be
1
operated; or
2
(ii) causes or permits the vessel to be in navigable waters;
3
and
4
(b) a unique identifier is not in force for the vessel; and
5
(c) the vessel is not exempt from the requirement to have a
6
unique identifier (see section 143).
7
Penalty: 60 penalty units.
8
(2) An offence against subsection (1) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
33 Offence--operating etc. a vessel without a unique identifier
11
(master)
12
(1) The master of a domestic commercial vessel commits an offence if:
13
(a)
the
master:
14
(i) operates the vessel, or causes or permits the vessel to be
15
operated; or
16
(ii) causes or permits the vessel to be in navigable waters;
17
and
18
(b) a unique identifier is not in force for the vessel; and
19
(c) the vessel is not exempt from the requirement to have a
20
unique identifier (see section 143).
21
Penalty: 60 penalty units.
22
(2) Subsection (1) does not apply if:
23
(a) the vessel is a hire and drive vessel being used wholly for
24
recreational purposes; and
25
(b) the master of the vessel is a hirer of the vessel.
26
(3) An offence against subsection (1) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
34 Offence--display etc. of a unique identifier (owner)
29
(1) The owner of a domestic commercial vessel commits an offence if:
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 1 Unique identifiers
Section 35
46 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a)
the
owner:
1
(i) operates the vessel, or causes or permits the vessel to be
2
operated; or
3
(ii) causes or permits the vessel to be in navigable waters;
4
and
5
(b) a unique identifier is not displayed on the vessel in
6
accordance with the regulations.
7
Penalty: 60 penalty units.
8
(2) An offence against subsection (1) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
35 Offence--display etc. of unique identifier (master)
11
(1) The master of a domestic commercial vessel commits an offence if:
12
(a)
the
master:
13
(i) operates the vessel, or causes or permits the vessel to be
14
operated; or
15
(ii) causes or permits the vessel to be in navigable waters;
16
and
17
(b) a unique identifier is not displayed on the vessel in
18
accordance with the regulations.
19
Penalty: 60 penalty units.
20
(2) Subsection (1) does not apply if:
21
(a) the vessel is a hire and drive vessel being used wholly for
22
recreational purposes; and
23
(b) the master of the vessel is a hirer of the vessel.
24
(3) An offence against subsection (1) is an offence of strict liability.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
36 Offence--removal or alteration of a unique identifier
27
(1) A person commits an offence if:
28
(a) the person removes or alters a unique identifier that is
29
displayed on a domestic commercial vessel; and
30
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Unique identifiers Division 1
Section 36
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 47
(b) the removal or alteration is not permitted by the regulations.
1
Penalty: 60 penalty units.
2
(2) An offence against subsection (1) is an offence of strict liability.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
5
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 2 Certificates of survey
Section 37
48 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 2--Certificates of survey
1
37 Person may apply for a certificate of survey
2
(1) A person may apply to the National Regulator for a certificate of
3
survey for a domestic commercial vessel.
4
(2) The application must be in accordance with the regulations and
5
must be accompanied by the fee prescribed by the regulations (if
6
any).
7
38 Issue of certificate of survey
8
(1) The National Regulator must issue a certificate of survey for a
9
domestic commercial vessel if:
10
(a) an application for the certificate has been made under
11
section 37; and
12
(b) the National Regulator is satisfied that the vessel has been
13
surveyed in accordance with the regulations; and
14
(c) the National Regulator is satisfied that the criteria prescribed
15
by the regulations are met in relation to the issue of the
16
certificate.
17
(2) Without limiting the criteria that may be prescribed, the regulations
18
are to include criteria relating to:
19
(a) the technical specifications that the vessel must satisfy; and
20
(b) the standards prescribed as mentioned in section 159 that the
21
vessel must satisfy.
22
(3) A certificate of survey is subject to:
23
(a) the conditions (if any) prescribed by the regulations; and
24
(b) the conditions (if any) imposed by the National Regulator.
25
(4) Conditions prescribed by the regulations or imposed by the
26
National Regulator may include, but are not limited to, conditions
27
relating to:
28
(a) the frequency with which a vessel must be surveyed; and
29
(b) compliance with standards prescribed as mentioned in
30
section 159.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of survey Division 2
Section 39
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 49
(5) A certificate of survey:
1
(a) comes into force on the day specified in the certificate, or, if
2
no day is so specified, on the day on which it is issued; and
3
(b) subject to subsection (6), remains in force until the day
4
specified in the certificate, unless it is revoked earlier.
5
(6) A certificate of survey is not in force at any time when it is
6
suspended.
7
39 Person may apply for variation, suspension or revocation of a
8
certificate of survey
9
(1) A person may apply to the National Regulator for a variation,
10
suspension or revocation of a certificate of survey for a domestic
11
commercial vessel.
12
(2) The application must be in accordance with the regulations and
13
must be accompanied by the fee prescribed by the regulations (if
14
any).
15
40 Variation of certificate of survey
16
(1) The National Regulator must vary a certificate of survey if:
17
(a) an application for variation of the certificate has been made
18
under section 39; and
19
(b) the National Regulator is satisfied that the criteria prescribed
20
by the regulations in relation to the variation are met.
21
(2) The National Regulator must vary a certificate of survey on the
22
National Regulator's initiative if the National Regulator is satisfied
23
that the criteria prescribed by the regulations in relation to variation
24
on the initiative of the National Regulator are met.
25
(3) Without limiting subsections (1) and (2), the National Regulator
26
may vary a certificate of survey to impose a condition on the
27
certificate or to vary or revoke such a condition.
28
41 Suspension of certificate of survey
29
(1) The National Regulator must suspend a certificate of survey if:
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 2 Certificates of survey
Section 42
50 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) an application for suspension of the certificate has been made
1
under section 39; and
2
(b) the National Regulator is satisfied that the criteria prescribed
3
by the regulations in relation to the suspension are met.
4
(2) The National Regulator must suspend a certificate of survey on the
5
National Regulator's initiative if the National Regulator is satisfied
6
that the suspension is necessary:
7
(a) for the purpose of:
8
(i) protecting human life; or
9
(ii) securing the safe navigation of vessels; or
10
(iii) dealing with an emergency involving a serious threat to
11
the environment; or
12
(b) for another purpose prescribed by the regulations.
13
(3)
A
suspension:
14
(a) comes into force on the day specified by the National
15
Regulator in writing or, if no day is so specified, on the day
16
the holder of the certificate is notified in writing of the
17
suspension; and
18
(b) remains in force until:
19
(i) the end of the period specified in writing by the
20
National Regulator, which must not exceed the
21
prescribed period; or
22
(ii) if no period is specified--the end of the prescribed
23
period;
24
unless it is revoked earlier.
25
(4) A period referred to in subsection (3)(b)(i) may be specified by
26
reference to the fulfilment of a requirement or condition specified
27
by the Regulator.
28
42 Revocation of certificate of survey
29
(1) The National Regulator must revoke a certificate of survey if:
30
(a) an application for revocation of the certificate has been made
31
under section 39; and
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of survey Division 2
Section 43
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 51
(b) the National Regulator is satisfied that the criteria prescribed
1
by the regulations in relation to revocation on application are
2
met.
3
(2) The National Regulator must revoke a certificate of survey on the
4
National Regulator's initiative if the National Regulator is satisfied
5
that the criteria prescribed by the regulations in relation to
6
revocation on the initiative of the National Regulator are met.
7
43 Offence--operating etc. a vessel without a certificate of survey
8
(owner)
9
(1) The owner of a domestic commercial vessel commits an offence if:
10
(a) the owner operates the vessel, or causes or permits the vessel
11
to be operated; and
12
(b) a certificate of survey is not in force for the vessel; and
13
(c) the vessel is not exempt from survey (see section 143).
14
Penalty: 60 penalty units.
15
(2) An offence against subsection (1) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
44 Offence--operating etc. a vessel without a certificate of survey
18
(master)
19
(1) The master of a domestic commercial vessel commits an offence if:
20
(a) the master operates the vessel, or causes or permits the vessel
21
to be operated; and
22
(b) a certificate of survey is not in force for the vessel; and
23
(c) the vessel is not exempt from survey (see section 143).
24
Penalty: 60 penalty units.
25
(2) Subsection (1) does not apply if:
26
(a) the vessel is a hire and drive vessel being used wholly for
27
recreational purposes; and
28
(b) the master of the vessel is a hirer of the vessel.
29
(3) An offence against subsection (1) is an offence of strict liability.
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 2 Certificates of survey
Section 45
52 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
45 Offence--breach of a condition of a certificate of survey (owner)
2
(1) The owner of a domestic commercial vessel commits an offence if:
3
(a) the owner operates the vessel, or causes or permits the vessel
4
to be operated; and
5
(b) the operation of the vessel is in breach of a condition of the
6
certificate of survey of the vessel.
7
Penalty: 60 penalty units.
8
(2) An offence against subsection (1) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
46 Offence--breach of a condition of a certificate of survey (master)
11
(1) The master of a domestic commercial vessel commits an offence if:
12
(a) the master operates the vessel, or causes or permits the vessel
13
to be operated; and
14
(b) the operation of the vessel is in breach of a condition of the
15
certificate of survey of the vessel.
16
Penalty: 60 penalty units.
17
(2) Subsection (1) does not apply if:
18
(a) the vessel is a hire and drive vessel being used wholly for
19
recreational purposes; and
20
(b) the master of the vessel is a hirer of the vessel.
21
(3) An offence against subsection (1) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
24
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of operation Division 3
Section 47
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 53
Division 3--Certificates of operation
1
47 Person may apply for a certificate of operation
2
(1) A person may apply to the National Regulator for a certificate of
3
operation for one or more domestic commercial vessels.
4
(2) The application must be in accordance with the regulations and
5
must be accompanied by the fee prescribed by the regulations (if
6
any).
7
(3) If the application is for more than one domestic commercial vessel,
8
each vessel must be separately identified in the application.
9
48 Issue of certificate of operation
10
(1) The National Regulator must issue a certificate of operation for one
11
or more domestic commercial vessels if:
12
(a) an application for the certificate has been made under
13
section 47; and
14
(b) the National Regulator is satisfied that the applicant has
15
demonstrated appropriate competence and capacity in
16
relation to the safe operation of the vessel; and
17
(c) the National Regulator is satisfied that the criteria prescribed
18
by the regulations are met in relation to the issue of the
19
certificate.
20
(2) Despite subsection (1), the National Regulator may refuse to issue
21
a certificate of operation for one or more domestic commercial
22
vessels if the National Regulator is satisfied that the applicant is
23
not a fit and proper person to hold the certificate.
24
(3) Without limiting the criteria that may be prescribed, the regulations
25
are to include criteria relating to the safe operation of vessels.
26
(4) A certificate of operation is subject to:
27
(a) the conditions (if any) prescribed by the regulations; and
28
(b) the conditions (if any) imposed by the National Regulator.
29
(5) Conditions prescribed by the regulations or imposed by the
30
National Regulator on a certificate of operation may include, but
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 3 Certificates of operation
Section 49
54 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
are not limited to, conditions relating to the following for each
1
vessel to which the certificate relates:
2
(a) the number of crew required to be on board while the
3
relevant vessel or vessels are being operated;
4
(b) qualifications of the master and crew;
5
(c) the number of people that may be on board;
6
(d) the condition of specified physical parts of the relevant vessel
7
or vessels;
8
(e) safety management systems;
9
(f) limitations on use by reference to geographical and
10
meteorological factors and time of day;
11
(g)
operating
hours;
12
(h) compliance with standards prescribed as mentioned in
13
section 159.
14
(6) A certificate of operation:
15
(a) comes into force on the day specified in the certificate, or, if
16
no day is so specified, on the day on which it is issued; and
17
(b) subject to subsection (7), remains in force until the day
18
specified in the certificate, unless it is revoked earlier.
19
(7) A certificate of operation is not in force at any time when it is
20
suspended.
21
49 Person may apply for variation, suspension or revocation of a
22
certificate of operation
23
(1) A person may apply to the National Regulator for a variation,
24
suspension or revocation of a certificate of operation.
25
(2) The application must be in accordance with the regulations and
26
must be accompanied by the fee prescribed by the regulations (if
27
any).
28
50 Variation of certificate of operation
29
(1) The National Regulator must vary a certificate of operation if:
30
(a) an application for variation of the certificate has been made
31
under section 49; and
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of operation Division 3
Section 51
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 55
(b) the National Regulator is satisfied that the criteria prescribed
1
by the regulations in relation to the variation are met.
2
(2) The National Regulator must vary a certificate of operation on the
3
National Regulator's initiative if the National Regulator is satisfied
4
that the criteria prescribed by the regulations in relation to variation
5
on the initiative of the National Regulator are met.
6
(3) Without limiting subsections (1) and (2), the National Regulator
7
may vary a certificate of operation to impose a condition on the
8
certificate or to vary or revoke such a condition.
9
51 Suspension of certificate of operation
10
(1) The National Regulator must suspend a certificate of operation if:
11
(a) an application for suspension of the certificate has been made
12
under section 49; and
13
(b) the National Regulator is satisfied that the criteria prescribed
14
by the regulations in relation to the suspension are met.
15
(2) The National Regulator must suspend a certificate of operation on
16
the National Regulator's initiative if the National Regulator is
17
satisfied that the suspension is necessary:
18
(a) for the purpose of:
19
(i) protecting human life; or
20
(ii) securing the safe navigation of vessels; or
21
(iii) dealing with an emergency involving a serious threat to
22
the environment; or
23
(b) for another purpose prescribed by the regulations.
24
(3)
A
suspension:
25
(a) comes into force on the day specified by the National
26
Regulator in writing or, if no day is so specified, on the day
27
the holder of the certificate is notified in writing of the
28
suspension; and
29
(b) remains in force until:
30
(i) the end of the period specified in writing by the
31
National Regulator, which must not exceed the
32
prescribed period; or
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 3 Certificates of operation
Section 52
56 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(ii) if no period is specified--the end of the prescribed
1
period;
2
unless it is revoked earlier.
3
(4) A period referred to in subparagraph (3)(b)(i) may be described by
4
reference to the fulfilment of a requirement or condition specified
5
by the Regulator.
6
52 Revocation of certificate of operation
7
(1) The National Regulator must revoke a certificate of operation if:
8
(a) an application for revocation of the certificate has been made
9
under section 49; and
10
(b) the National Regulator is satisfied that the criteria prescribed
11
by the regulations in relation to revocation on application are
12
met.
13
(2) The National Regulator must revoke a certificate of operation on
14
the National Regulator's initiative if the National Regulator is
15
satisfied that the criteria prescribed by the regulations in relation to
16
revocation on the initiative of the National Regulator are met.
17
(3) Without limiting subsections (1) and (2), the National Regulator
18
may revoke a certificate of operation if the National Regulator is
19
satisfied that the holder of the certificate is not a fit and proper
20
person to hold the certificate.
21
53 Offence--operating etc. a vessel without a certificate of operation
22
(owner)
23
(1) The owner of a domestic commercial vessel commits an offence if:
24
(a) the owner operates the vessel, or causes or permits the vessel
25
to be operated by another person; and
26
(b) the operation of the vessel is not authorised by a certificate of
27
operation in force for the vessel; and
28
(c) the vessel is not exempt from the requirement to have a
29
certificate of operation (see section 143).
30
Penalty: 60 penalty units.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of operation Division 3
Section 54
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 57
(2) An offence against subsection (1) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
54 Offence--operating etc. a vessel without a certificate of operation
3
(master)
4
(1) The master of a domestic commercial vessel commits an offence if:
5
(a) the master operates the vessel, or causes or permits the vessel
6
to be operated by another person; and
7
(b) the operation of the vessel is not authorised by a certificate of
8
operation in force for the vessel; and
9
(c) the vessel is not exempt from the requirement to have a
10
certificate of operation (see section 143).
11
Penalty: 60 penalty units.
12
(2) Subsection (1) does not apply if:
13
(a) the vessel is a hire and drive vessel being used wholly for
14
recreational purposes; and
15
(b) the master of the vessel is a hirer of the vessel.
16
(3) An offence against subsection (1) is an offence of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
55 Offence--breach of a condition of a certificate of operation
19
(owner)
20
(1) The owner of a domestic commercial vessel commits an offence if:
21
(a) the owner operates the vessel, or causes or permits the vessel
22
to be operated; and
23
(b) the operation of the vessel is in breach of a condition of the
24
certificate of operation for the vessel.
25
Penalty: 60 penalty units.
26
(2) An offence against subsection (1) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 3 Certificates of operation
Section 56
58 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
56 Offence--breach of a condition of a certificate of operation
1
(master)
2
(1) The master of a domestic commercial vessel commits an offence if:
3
(a) the master operates the vessel, or causes or permits the vessel
4
to be operated; and
5
(b) the operation of the vessel is in breach of a condition of the
6
certificate of operation for the vessel.
7
Penalty: 60 penalty units.
8
(2) Subsection (1) does not apply if:
9
(a) the vessel is a hire and drive vessel being used wholly for
10
recreational purposes; and
11
(b) the master of the vessel is a hirer of the vessel.
12
(3) An offence against subsection (1) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
57 Obligation to notify National Regulator of certain matters
15
(1) The holder of a certificate of operation for a domestic commercial
16
vessel commits an offence if:
17
(a) the vessel is sold, modified, sunk or scrapped; and
18
(b) the holder does not notify the National Regulator within the
19
prescribed period of the sale, modification, sinking or
20
scrapping of the vessel.
21
Penalty: 60 penalty units.
22
(2) An offence against subsection (1) is an offence of strict liability.
23
Note:
For strict liability, see section 6.1 of the Criminal Code.
24
25
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of competency Division 4
Section 58
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 59
Division 4--Certificates of competency
1
58 Regulations may provide for certificate of competency
2
(1) The regulations may make provision in relation to certificates of
3
competency.
4
(2) The regulations may require that an individual hold a certificate of
5
competency of a particular kind in order to undertake particular
6
duties, or perform particular functions, in the person's capacity as
7
the master or a member of the crew of a domestic commercial
8
vessel.
9
(3) The regulations may provide for different classes of certificates of
10
competency.
11
59 Individual may apply for a certificate of competency
12
(1) An individual may apply to the National Regulator for a certificate
13
of competency.
14
(2) The application must be in accordance with the regulations and
15
must be accompanied by the fee prescribed by the regulations (if
16
any).
17
60 Issue of certificate of competency
18
(1) The National Regulator must issue a certificate of competency to a
19
person if:
20
(a) the person has made an application for the certificate under
21
section 59; and
22
(b) the National Regulator is satisfied that the criteria prescribed
23
by the regulations are met in relation to the issue of the
24
certificate.
25
(2) Despite subsection (1), the National Regulator may refuse to issue
26
a certificate of competency to a person if the National Regulator is
27
satisfied that the applicant is not a fit and proper person to hold the
28
certificate.
29
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 4 Certificates of competency
Section 61
60 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(3) Without limiting the criteria that may be prescribed, the
1
regulations:
2
(a) are to include criteria required to be satisfied for a particular
3
certificate of competency to be issued to a person; and
4
(b) may include criteria relating to tests, including medical tests,
5
and assessments of experience and competence.
6
(4) A certificate of competency is subject to:
7
(a) the conditions (if any) prescribed by the regulations; and
8
(b) the conditions (if any) imposed by the National Regulator.
9
(5) Conditions prescribed by the regulations or imposed by the
10
National Regulator may include, but are not limited to:
11
(a) conditions relating to tests, including medical tests, and
12
assessments of experience and competence, that the holder of
13
the certificate must take in order to retain the certificate; and
14
(b) limitations relating to the types or classes of domestic
15
commercial vessels that the holder of the certificate is
16
authorised to operate; and
17
(c) the places and kinds of waters in which, and periods during
18
which, the holder of the certificate is authorised to operate
19
domestic commercial vessels.
20
(6) A certificate of competency:
21
(a) comes into force on the day specified in the certificate or, if
22
no day is specified, the day on which it is issued; and
23
(b) subject to subsection (7), remains in force until the day
24
specified in the certificate, unless it is revoked earlier.
25
(7) A certificate of competency is not in force at any time when it is
26
suspended.
27
61 Person may apply for variation, suspension or revocation of a
28
certificate of competency
29
(1) A person may apply to the National Regulator for a variation,
30
suspension or revocation of a certificate of competency held by the
31
person.
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of competency Division 4
Section 62
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 61
(2) The application must be in accordance with the regulations and
1
must be accompanied by the fee prescribed by the regulations (if
2
any).
3
62 Variation of certificate of competency
4
(1) The National Regulator must vary a certificate of competency if:
5
(a) an application for variation of the certificate has been made
6
under section 61; and
7
(b) the National Regulator is satisfied that the criteria prescribed
8
by the regulations in relation to the variation are met.
9
(2) The National Regulator must vary a certificate of competency on
10
the National Regulator's initiative if the National Regulator is
11
satisfied that the criteria prescribed by the regulations in relation to
12
variation on the initiative of the National Regulator are met.
13
(3) Without limiting subsections (1) and (2), the National Regulator
14
may vary a certificate of competency to impose a condition on the
15
certificate or to vary or revoke such a condition.
16
63 Suspension of certificate of competency
17
(1) The National Regulator must suspend a certificate of competency
18
if:
19
(a) an application for suspension of the certificate has been made
20
under section 61; and
21
(b) the National Regulator is satisfied that the criteria prescribed
22
by the regulations in relation to the suspension are met.
23
(2) The National Regulator must suspend a certificate of competency
24
on the National Regulator's initiative if the National Regulator is
25
satisfied that the suspension is necessary:
26
(a) for the purpose of:
27
(i) protecting human life; or
28
(ii) securing the safe navigation of vessels; or
29
(iii) dealing with an emergency involving a serious threat to
30
the environment; or
31
(b) for another purpose prescribed by the regulations.
32
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 4 Certificates of competency
Section 64
62 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(3)
A
suspension:
1
(a) comes into force on the day specified by the National
2
Regulator in writing or, if no day is so specified, on the day
3
the holder of the certificate is notified in writing of the
4
suspension; and
5
(b) remains in force until:
6
(i) the end of the period specified in writing by the
7
National Regulator, which must not exceed the
8
prescribed period; or
9
(ii) if no period is specified--the end of the prescribed
10
period;
11
unless it is revoked earlier.
12
(4) A period referred to in subparagraph (3)(b)(i) may be described by
13
reference to the fulfilment of a requirement or condition specified
14
by the Regulator.
15
64 Revocation of certificate of competency
16
(1) The National Regulator must revoke a certificate of competency if:
17
(a) an application for revocation of the certificate has been made
18
under section 61; and
19
(b) the National Regulator is satisfied that the criteria prescribed
20
by the regulations in relation to revocation on application are
21
met.
22
(2) The National Regulator must revoke a certificate of competency on
23
the National Regulator's initiative if the National Regulator is
24
satisfied that the criteria prescribed by the regulations in relation to
25
revocation on the initiative of the National Regulator are met.
26
(3) Without limiting subsections (1) and (2), the National Regulator
27
may revoke a certificate of competency if the National Regulator is
28
satisfied that the holder of the certificate is not a fit and proper
29
person to hold the certificate.
30
65 Offence--owner causing etc. performance of duties or functions
31
without a certificate of competency
32
(1) The owner of a domestic commercial vessel commits an offence if:
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of competency Division 4
Section 66
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 63
(a) the owner causes or permits another person to perform duties
1
or functions in relation to the vessel; and
2
(b) the regulations require the other person to hold a certificate
3
of competency of a particular kind in order to perform those
4
duties or functions; and
5
(c) the other person does not hold a certificate of competency of
6
that kind; and
7
(d) the other person is not exempt from the requirement to hold a
8
certificate of competency of that kind (see section 143).
9
Penalty: 60 penalty units.
10
(2) An offence against subsection (1) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
66 Offence--person performing duties or functions without a
13
certificate of competency
14
(1) A person commits an offence if:
15
(a) the person performs duties or functions in relation to a
16
domestic commercial vessel; and
17
(b) the regulations require the person to hold a certificate of
18
competency of a particular kind in order to perform those
19
duties or functions; and
20
(c) the person does not hold a certificate of competency of that
21
kind; and
22
(d) the person is not exempt from the requirement to hold a
23
certificate of competency of that kind (see section 143).
24
Penalty: 60 penalty units.
25
(2) An offence against subsection (1) is an offence of strict liability.
26
Note:
For strict liability, see section 6.1 of the Criminal Code.
27
67 Offence--master causing etc. performance of duties or functions
28
without a certificate of competency
29
(1) The master of a domestic commercial vessel commits an offence if:
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 4 Certificates of competency
Section 68
64 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) the master causes or permits another person to perform duties
1
or functions in relation to the vessel; and
2
(b) the regulations require the other person to hold a certificate
3
of competency of a particular kind in order to perform those
4
duties or functions; and
5
(c) the other person does not hold a certificate of competency of
6
that kind; and
7
(d) the other person is not exempt from the requirement to hold a
8
certificate of competency of that kind (see section 143).
9
Penalty: 60 penalty units.
10
(2) An offence against subsection (1) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
68 Offence--owner causing etc. breach of a condition of a certificate
13
of competency
14
(1) The owner of a domestic commercial vessel commits an offence if:
15
(a) the owner causes or permits another person to perform duties
16
or functions in relation to the vessel; and
17
(b) the performance of the duties or functions is in breach of a
18
condition of a certificate of competency held by the other
19
person.
20
Penalty: 60 penalty units.
21
(2) An offence against subsection (1) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
69 Offence--breach of a condition of a certificate of competency by
24
any person
25
(1) A person commits an offence if:
26
(a) the person performs duties or functions in relation to a
27
domestic commercial vessel; and
28
(b) the performance of the duties or functions is in breach of a
29
condition of a certificate of competency held by the person.
30
Penalty: 60 penalty units.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
Certificates of competency Division 4
Section 70
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 65
(2) An offence against subsection (1) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
70 Offence--master causing etc. breach of a condition of a
3
certificate of competency
4
(1) The master of a domestic commercial vessel commits an offence if:
5
(a) the master causes or permits another person to perform duties
6
or functions in relation to the vessel; and
7
(b) the performance of the duties or functions is in breach of a
8
condition of a certificate of competency held by the other
9
person.
10
Penalty: 60 penalty units.
11
(2) An offence against subsection (1) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
14
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 5 General matters relating to unique identifiers and certificates
Section 71
66 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 5--General matters relating to unique identifiers
1
and certificates
2
71 National Regulator may require information
3
(1) The National Regulator may require a person to give further
4
information in relation to an application by the person for a
5
certificate or a unique identifier.
6
(2) The National Regulator may require information to be given under
7
this section at any time before the National Regulator decides the
8
application, whether before or after the National Regulator has
9
begun to consider the application.
10
(3) If the National Regulator requires information to be given under
11
this section in relation to an application, the National Regulator
12
may decline to consider or further consider the application until the
13
information is provided.
14
72 National Regulator must give a show cause notice before varying,
15
suspending or revoking a certificate
16
(1) The National Regulator must, before varying or revoking a
17
certificate:
18
(a) give the holder of the certificate notice in writing inviting the
19
holder to show cause, within a reasonable period specified in
20
the notice, why the variation should not be made or the
21
certificate should not be revoked; and
22
(b) consider any representations the holder makes to the National
23
Regulator within that period.
24
(2) The National Regulator must, before suspending a certificate in
25
accordance with section 41(2)(b), 51(2)(b) or 63(2)(b):
26
(a) give the holder of the certificate notice in writing inviting the
27
holder to show cause, within a reasonable period specified in
28
the notice, why the certificate should not be suspended; and
29
(b) consider any representations the holder makes to the National
30
Regulator within that period.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
General matters relating to unique identifiers and certificates Division 5
Section 73
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 67
(3) The National Regulator is not required to give a notice under
1
subsection (1) or (2) before varying, suspending or revoking a
2
certificate on application made by the holder of the certificate.
3
73 National Regulator may recognise certificates
4
(1) The National Regulator may, by written instrument, recognise a
5
certificate, or a class of certificates, issued for a vessel or a person
6
under a law of the Commonwealth, a State or a Territory, or a law
7
of a foreign country, if the National Regulator is satisfied:
8
(a) that the certificate is the equivalent of, or that it is otherwise
9
appropriate to recognise the certificate as the equivalent of, a
10
prescribed certificate; or
11
(b) that the class of certificates is the equivalent of, or that it is
12
otherwise appropriate to recognise the class of certificates as
13
the equivalent of, a prescribed class of certificates.
14
(2) At a time when a certificate in force for a vessel or a person is
15
recognised under this section, the prescribed certificate is taken to
16
be in force for the vessel or the person.
17
(3) The National Regulator may specify conditions to which the
18
recognition of the certificate is subject.
19
(4) A recognition of a certificate ceases to have effect if a condition to
20
which its recognition is subject is contravened.
21
(5) The National Regulator may revoke a recognition of a certificate in
22
the circumstances prescribed by the regulations.
23
(6) An instrument made under subsection (1) is not a legislative
24
instrument.
25
74 Fit and proper person
26
(1) In determining whether a person is a fit and proper person for the
27
purposes of deciding whether to issue or revoke a certificate, the
28
National Regulator may have regard only to:
29
(a) any conviction of the person for an offence against this Law;
30
and
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 5 General matters relating to unique identifiers and certificates
Section 75
68 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(b) any conviction of the person for an offence against a law of
1
the Commonwealth, a State or a Territory that is relevant for
2
the purposes of deciding whether the person is suitable to
3
hold the certificate; and
4
(c) any other matter prescribed by the regulations.
5
(2) This section does not affect the operation of Part VIIC of the
6
Crimes Act 1914 of the Commonwealth (which includes provisions
7
that, in certain circumstances, relieve persons of the requirement to
8
disclose spent convictions and require persons aware of such
9
convictions to disregard them).
10
75 Regulations may provide for matters relating to certificates and
11
unique identifiers
12
The regulations may provide for matters in relation to certificates
13
and unique identifiers.
14
76 Regulations may provide for matters relating to applications for
15
certificates and unique identifiers
16
(1) Without limiting section 75, the regulations may prescribe the
17
following matters in relation to applications for certificates and
18
unique identifiers:
19
(a) the persons who may make applications;
20
(b) approval of forms for the making of applications;
21
(c) the manner of making applications;
22
(d) information required to be included in applications;
23
(e) documents that must accompany applications;
24
(f) fees connected with applications;
25
(g)
withdrawal
of
applications.
26
(2) The regulations may require information included in applications
27
to be verified by statutory declaration.
28
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
General matters relating to unique identifiers and certificates Division 5
Section 77
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 69
77 Regulations may make provision in relation to the issue, variation
1
and revocation of certificates and unique identifiers
2
(1) Without limiting section 75, the regulations may make provision
3
for and in relation to the following:
4
(a) criteria that must be satisfied in order for the National
5
Regulator to issue certificates or unique identifiers, or to vary
6
or revoke certificates;
7
(b) the time limits within which applications are to be
8
determined;
9
(c) the information to be included in certificates;
10
(d) the person in whose name certificates are to be issued;
11
(e) conditions to which certificates are subject;
12
(f) conditions that the National Regulator may impose upon
13
certificates;
14
(g) the time at which certificates, variations of certificates,
15
suspensions of certificates and revocations of certificates
16
come into force;
17
(h) the time at which certificates or suspensions cease to be in
18
force;
19
(i) the methods of replacing certificates;
20
(j) registers of certificates and unique identifiers;
21
(k) the criteria to be met for variation of certificates:
22
(i) on application; or
23
(ii) on the initiative of the National Regulator;
24
(l) procedures relating to notification of proposed decisions by
25
the National Regulator.
26
(2) The criteria that may be prescribed for the purposes of
27
subsection (1)(a) include, but are not limited to, criteria relating to
28
compliance with standards prescribed as mentioned in section 159.
29
(3) The conditions that may be prescribed for the purposes of
30
subsections (1)(e) and (f) include, but are not limited to, conditions
31
relating to compliance with standards prescribed as mentioned in
32
section 159.
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 4 Vessel identifiers and certificates for vessels and seafarers
Division 5 General matters relating to unique identifiers and certificates
Section 78
70 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
78 Regulations may make provision in relation to renewal and
1
transfer of certificates
2
Without limiting section 75, the regulations may make provision
3
for and in relation to the following:
4
(a) the renewal of certificates;
5
(b) the transfer of certificates;
6
(c) requiring notification to be given of events involving
7
domestic commercial vessels that have unique identifiers,
8
including, but not limited to, change of ownership.
9
79 Regulations may require display of certificates
10
The regulations may require that a person display a certificate or a
11
unique identifier in the prescribed manner.
12
80 Regulations may provide for certificate of operation for persons
13
(1) The regulations may provide for certificates of operation to be
14
issued to a person permitting the operation of domestic commercial
15
vessels by the person and other persons.
16
(2) Regulations made for the purposes of subsection (1) may provide
17
for certificates of operation to be held in relation to one or more
18
specified vessels (which may be specified by reference to a class
19
and need not be separately specified).
20
81 Effect of certificate of operation for persons
21
A certificate of operation is taken to be in force for a vessel, and to
22
be subject to any conditions imposed under the regulations, to the
23
extent that:
24
(a) a certificate of operation has been issued under regulations
25
made for the purposes of section 80; and
26
(b) the certificate of operation permits the operation by a person
27
of:
28
(i) the vessel; or
29
(ii) vessels of a class that includes the vessel; and
30
(c) the vessel is operated by the person.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Vessel identifiers and certificates for vessels and seafarers Part 4
General matters relating to unique identifiers and certificates Division 5
Section 82
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 71
82 Defeasibility
1
A certificate under this Law is issued on the basis that:
2
(a) the certificate may be revoked or varied under this Law; and
3
(b) the certificate may be revoked or varied (however described)
4
by or under later legislation; and
5
(c) no compensation is payable if the certificate is revoked or
6
varied as mentioned in either of the above paragraphs.
7
83 Certificates etc. to be made available
8
(1) A person commits an offence if:
9
(a) the person is the holder of a certificate or other document:
10
(i) required to be held under this Law; or
11
(ii) issued under this Law; and
12
(b) a copy of the certificate or other document is not made
13
available at all reasonable times for examination on request
14
by either of the following:
15
(i) the National Regulator;
16
(ii) a marine safety inspector.
17
Penalty: 60 penalty units.
18
(2) An offence against subsection (1) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
84 National Regulator may require delivery of revoked certificates
21
If a certificate is revoked, the National Regulator may require the
22
certificate to be delivered to the National Regulator in accordance
23
with the regulations.
24
25
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 5 Assistance and reporting requirements
Section 85
72 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Part 5--Assistance and reporting requirements
1
2
85 Obligation to render assistance
3
(1) The master of a domestic commercial vessel commits an offence if:
4
(a) the vessel is in any waters; and
5
(b) the master has reason to believe that one or more persons are
6
in distress on a vessel or in any waters; and
7
(c) the master does not both:
8
(i) cause his or her vessel to proceed as fast as practicable
9
to the assistance of the person or persons; and
10
(ii) inform the person or persons that the master is doing so.
11
Penalty: Imprisonment for 4 years.
12
(2) Subsection (1) does not apply if:
13
(a) the master of the domestic commercial vessel is unable to
14
comply with subsection (1)(c); or
15
(b) in the special circumstances of the case, it is unreasonable or
16
unnecessary for the master of the domestic commercial
17
vessel to do so; or
18
(c) the master of the domestic commercial vessel is informed by
19
the person or persons in distress, or by the master of another
20
vessel that has reached the person or persons, that assistance
21
is no longer necessary; or
22
(d) the master of the domestic commercial vessel is informed
23
that another vessel has been requisitioned and is complying
24
with the requisition.
25
Note:
A defendant bears an evidential burden in relation to the matter in
26
subsection (2) (see section 13.3(3) of the Criminal Code).
27
86 Obligation to render assistance if requisitioned
28
(1) The master of a vessel that is in distress in any waters may, after
29
consulting so far as possible with the masters of vessels that
30
answer his or her call for assistance, requisition any domestic
31
commercial vessel that the master considers best able to render
32
assistance.
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Assistance and reporting requirements Part 5
Section 87
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 73
(2) The master of a domestic commercial vessel commits an offence if:
1
(a) the vessel is requisitioned by the master of another vessel that
2
is in distress in any waters, in accordance with subsection (1);
3
and
4
(b) the master does not cause his or her vessel to proceed as fast
5
as practicable to the assistance of the other vessel.
6
Penalty: Imprisonment for 10 years.
7
(3) Subsection (2) does not apply if:
8
(a) the master of the domestic commercial vessel is unable to
9
comply with subsection (2)(b); or
10
(b) in the special circumstances of the case, it is unreasonable or
11
unnecessary for the master to do so; or
12
(c) the master of the domestic commercial vessel is informed by
13
the master of the vessel in distress, or by the master of
14
another vessel that has reached the vessel in distress, that
15
assistance is no longer necessary; or
16
(d) the master of the domestic commercial vessel is informed
17
that another vessel has been requisitioned and is complying
18
with the requisition.
19
Note:
A defendant bears an evidential burden in relation to the matter in
20
subsection (2) (see section 13.3(3) of the Criminal Code).
21
87 Obligation to record requests for assistance
22
(1) The master of a domestic commercial vessel commits an offence if
23
the master:
24
(a) is required to keep an official logbook for the vessel; and
25
(b) receives information that a person or persons are in distress
26
on a vessel or in any waters; and
27
(c) does not record in the official logbook:
28
(i) that he or she proceeded to the assistance of the person
29
or persons; or
30
(ii) if he or she did not so proceed--his or her reasons for
31
not so proceeding.
32
Penalty: 50 penalty units.
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 5 Assistance and reporting requirements
Section 88
74 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(2) An offence against subsection (1) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
88 Reporting of marine incidents to National Regulator (owner)
3
(1) The owner of a domestic commercial vessel commits an offence if:
4
(a) the vessel is involved in a marine incident that involves:
5
(i) the death of a person; or
6
(ii) serious injury to a person; or
7
(iii) the loss of a vessel; or
8
(iv) the loss of a person from the vessel; or
9
(v) significant damage to a vessel; and
10
(b) neither the owner nor the master of the vessel reports the
11
incident to the National Regulator as soon as reasonably
12
practicable, having regard to the circumstances, after the
13
owner becomes aware of the incident.
14
Penalty: 60 penalty units.
15
(2) The owner of a domestic commercial vessel commits an offence if:
16
(a) the vessel is involved in a marine incident; and
17
(b) neither the owner nor the master of the vessel gives a written
18
report of the incident, in the form approved by the National
19
Regulator, to the National Regulator within 72 hours after the
20
owner becomes aware of the incident.
21
Penalty: 60 penalty units.
22
(3) An offence against subsection (1) or (2) is an offence of strict
23
liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
89 Reporting of marine incidents to National Regulator (master)
26
(1) The master of a domestic commercial vessel commits an offence if:
27
(a) the vessel is involved in a marine incident that involves:
28
(i) the death of a person; or
29
(ii) serious injury to a person; or
30
(iii) the loss of a vessel; or
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Assistance and reporting requirements Part 5
Section 90
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 75
(iv) the loss of a person from a vessel; or
1
(v) significant damage to a vessel; and
2
(b) neither the master nor the owner of the vessel reports the
3
incident to the National Regulator as soon as reasonably
4
practicable after the master becomes aware of the incident,
5
having regard to the circumstances.
6
Penalty: 60 penalty units.
7
(2) The master of a domestic commercial vessel commits an offence if:
8
(a) the vessel is involved in a marine incident; and
9
(b) neither the master nor the owner of the vessel gives a written
10
report of the incident, in the form approved by the National
11
Regulator, to the National Regulator within 72 hours after the
12
master becomes aware of the incident.
13
Penalty: 60 penalty units.
14
(3) An offence against subsection (1) or (2) is an offence of strict
15
liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
90 Evidence of marine incidents
18
Preservation of evidence by persons on board vessel
19
(1) A person commits an offence if:
20
(a) a domestic commercial vessel is involved in a marine
21
incident; and
22
(b) the person does not, so far as reasonably practicable, preserve
23
any material that may be relevant to an investigation of the
24
marine incident.
25
Penalty: 500 penalty units.
26
Vessel owner's duty to ensure preservation of evidence
27
(2) The owner of a domestic commercial vessel commits an offence if:
28
(a) the vessel is involved in a marine incident; and
29
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 5 Assistance and reporting requirements
Section 90
76 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(b) the owner does not take all reasonable steps to ensure the
1
preservation of any material that may be relevant to an
2
investigation of the marine incident.
3
Penalty: 500 penalty units.
4
5
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Appointment of marine safety inspectors etc. Division 1
Section 91
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 77
Part 6--Powers of marine safety inspectors
1
Division 1--Appointment of marine safety inspectors etc.
2
91 Appointment of marine safety inspectors
3
(1) The National Regulator may, in writing, appoint either of the
4
following as a marine safety inspector:
5
(a) an officer or employee of an agency of the Commonwealth;
6
(b) an officer or employee of an agency of a State or Territory.
7
(2) A marine safety inspector may exercise all of the powers of a
8
marine safety inspector under this Law, or such of those powers as
9
are specified in the inspector's instrument of appointment.
10
(3) The National Regulator must not appoint a person as a marine
11
safety inspector unless the National Regulator is satisfied that the
12
person has suitable qualifications or experience to properly
13
exercise the powers of an inspector.
14
(4) The National Regulator must not appoint an officer or employee of
15
an agency of a State or Territory as a marine safety inspector
16
without the agreement of the State or Territory.
17
(5) In exercising his or her powers or performing his or her functions
18
as a marine safety inspector, the inspector must comply with any
19
direction of the National Regulator.
20
92 Identity cards
21
(1) The National Regulator must issue an identity card to a marine
22
safety inspector appointed under section 91.
23
(2) The identity card must:
24
(a) be in the form approved by the National Regulator; and
25
(b) contain a recent photograph of the marine safety inspector;
26
and
27
(c) state the powers that the inspector may exercise.
28
(3) A person commits an offence if:
29
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 1 Appointment of marine safety inspectors etc.
Section 93
78 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(a) the person has been issued with an identity card; and
1
(b) the person ceases to be a marine safety inspector; and
2
(c) the person does not, as soon as practicable after so ceasing,
3
return the identity card to the National Regulator.
4
Penalty: 5 penalty units.
5
(4) An offence against subsection (3) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
(5) Subsection (3) does not apply if the identity card was lost or
8
destroyed.
9
Note:
A defendant bears an evidential burden in relation to the matter in
10
subsection (5) (see section 13.3(3) of the Criminal Code).
11
(6) A marine safety inspector appointed under section 91 must carry
12
his or her identity card at all times when exercising powers and
13
performing functions and duties as an inspector.
14
93 False representation about being a marine safety inspector
15
(1) A person must not make a representation that the person is a
16
marine safety inspector if the person is not a marine safety
17
inspector.
18
Penalty: 60 penalty units.
19
(2) An offence against subsection (1) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
94 Obstructing or hindering a marine safety inspector
22
A person must not obstruct or hinder a marine safety inspector in
23
the exercise of his or her powers under this Law.
24
Penalty: 500 penalty units.
25
26
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 95
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 79
Division 2--Entry, search, seizure, detention and
1
information-gathering powers
2
Subdivision A--Powers to facilitate boarding with or without
3
consent or warrant
4
95 Requirement to facilitate boarding
5
(1) A marine safety inspector may require a person to take reasonable
6
steps to facilitate the boarding of a vessel under this Part.
7
(2) A requirement under subsection (1) may be made by any
8
reasonable means.
9
(3) The requirement is made whether or not the person in charge of the
10
vessel understands or is aware of the requirement.
11
Offence--non-compliance with requirement
12
(4) A person commits an offence if:
13
(a) a requirement is made of the person under subsection (1); and
14
(b) the person fails to comply with the requirement.
15
Penalty: 60 penalty units.
16
(5) Subsection (4) does not apply if the person has a reasonable
17
excuse.
18
Note:
A defendant bears an evidential burden in relation to the matter in
19
subsection (5) (see section 13.3(3) of the Criminal Code).
20
(6) An offence against subsection (4) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
96 Entering certain premises for access to domestic commercial
23
vessel
24
(1) A marine safety inspector may enter any premises that are a
25
structure, building or place, and are not used as a residence, to gain
26
access to a domestic commercial vessel for a purpose referred to in
27
section 97(1).
28
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 97
80 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(2) Subsection (1) does not authorise a marine safety inspector to enter
1
premises unless:
2
(a) if the inspector has been appointed under section 91--the
3
inspector has shown his or her identity card if required by the
4
occupier; or
5
(b) if the inspector is a member of the Australian Federal Police
6
or of the police force (however described) of a State or a
7
Territory--the inspector is in uniform, or has shown his or
8
her police identification if required by the occupier.
9
(3) A marine safety inspector is not required to comply with
10
subsection (2) if he or she believes on reasonable grounds that to
11
do so would endanger a person.
12
(4)
If:
13
(a) a marine safety inspector does not comply with
14
subsection (2) because of subsection (3); and
15
(b) the occupier of the premises is present at the premises;
16
the inspector must show his or her identity card to the occupier or
17
other person, as soon as practicable after entering the premises.
18
Subdivision B--Powers relating to vessels, exercisable without
19
consent or warrant
20
97 Boarding a vessel
21
(1) A marine safety inspector may board a vessel for any of the
22
following purposes:
23
(a) to ask questions under section 98;
24
(b)
monitoring
purposes;
25
(c) to issue an improvement notice or prohibition notice to a
26
person;
27
(d) if the regulations referred to in section 138 provide for a
28
marine safety inspector to issue infringement notices, or
29
notices relating to the issue of infringement notices--to issue
30
such a notice;
31
(e) to give a person a notice under section 101;
32
(f) to give a direction under section 109.
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 98
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 81
(2)
If:
1
(a) the inspector has been appointed under section 91; and
2
(b) the master of the vessel requests the inspector to produce
3
identification;
4
the inspector must produce his or her identity card.
5
(3)
If:
6
(a) the inspector is a member of the Australian Federal Police or
7
of the police force (however described) of a State or a
8
Territory and is not in uniform; and
9
(b) the master of the vessel requests the inspector to produce
10
identification;
11
the inspector must produce his or her police identification.
12
(4) If the marine safety inspector fails to produce the identity card or
13
police identification, the inspector must:
14
(a) leave the vessel; and
15
(b) not re-board the vessel without producing the identity card or
16
police identification or wearing police uniform.
17
(5) A marine safety inspector is not required to comply with
18
subsection (2), (3) or (4) if he or she believes on reasonable
19
grounds that to do so would endanger a person.
20
(6) If a marine safety inspector does not comply with subsection (2) or
21
(3) because of subsection (5), the inspector must, as soon as
22
practicable after the request was made, show his or her identity
23
card or police identification to the master.
24
98 Requiring master of a vessel to answer questions about the
25
nature of the vessel
26
(1) A marine safety inspector may require the master of a vessel to:
27
(a) answer questions put by the inspector about the nature or
28
operations of the vessel; and
29
(b) produce any books, records or documents about the nature or
30
operations of the vessel requested by the inspector.
31
(2) A person commits an offence if:
32
(a) a requirement is made of the person under subsection (1); and
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 99
82 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(b) the person fails to comply with the requirement.
1
Penalty: 30 penalty units.
2
(3) Subsection (2) does not apply if the person has a reasonable
3
excuse.
4
99 Monitoring domestic commercial vessels
5
(1) A marine safety inspector may exercise one or more of the powers
6
(the vessel monitoring powers) mentioned in subsection (2) in
7
relation to a domestic commercial vessel for monitoring purposes,
8
whether or not the inspector is on board the vessel (and whether or
9
not the inspector has reasonable grounds for suspecting that there
10
may be evidential material on the vessel).
11
Note 1:
For example, a marine safety inspector could require a person on
12
board a domestic commercial vessel to show him or her the safety
13
equipment on board the vessel, even if the inspector was in another
14
vessel.
15
Note 2:
If the inspector has reasonable grounds for suspecting that there may
16
be evidential material on the vessel, section 105 gives the inspector
17
extra powers relating to that material if he or she boards the vessel
18
with the occupier's consent or under an enforcement warrant. Also,
19
section 100 gives the inspector some powers relating to evidential
20
material found on the vessel by the exercise of the vessel monitoring
21
powers.
22
(2)
The
vessel monitoring powers are as follows:
23
(a) the power to search the vessel and any thing on the vessel;
24
(b) the power to examine or observe any activity conducted on
25
the vessel;
26
(c) the power to inspect, examine, take measurements of or
27
conduct tests on any thing on the vessel;
28
(d) the power to make any still or moving image or any
29
recording of the vessel or any thing on the vessel;
30
(e) the power to inspect any document on the vessel;
31
(f) the power to take extracts from, or make copies of, any such
32
document;
33
(g) the power to take onto the vessel such equipment and
34
materials as the inspector requires for the purpose of
35
exercising powers in relation to the vessel;
36
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 99
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 83
(h) the power to require a person on the vessel to show, or
1
demonstrate the operation of, machinery or equipment on the
2
vessel;
3
(i) the power to require a person on the vessel to give a marine
4
safety inspector one or more of the following:
5
(i) the person's name;
6
(ii) the person's residential address;
7
(iii) the person's date of birth;
8
(iv) evidence of the person's identity;
9
(j) the powers set out in subsections (3), (4) and (5).
10
Note:
Failure to comply with a requirement is an offence: see section 102.
11
(3)
The
vessel monitoring powers include the power to require (by any
12
reasonable means) the master of the vessel to do one or more of the
13
following:
14
(a) stop or manoeuvre the vessel;
15
(b) adopt a specified course or speed;
16
(c) maintain a specified course or speed;
17
(d) take the vessel to a specified place.
18
Note:
Failure to comply with a requirement is an offence: see section 102.
19
(4)
The
vessel monitoring powers include the power, when on the
20
vessel, to operate electronic equipment on the vessel to see
21
whether:
22
(a) the equipment; or
23
(b) a disk, tape or other storage device that:
24
(i) is on the vessel; and
25
(ii) can be used with the equipment or is associated with it;
26
contains information (data) that is relevant for monitoring
27
purposes.
28
(5)
The
vessel monitoring powers include the following powers
29
exercisable when on or leaving the vessel in relation to data found
30
in the exercise of the power under subsections (1), (2) and (4):
31
(a) the power to operate electronic equipment on the vessel to
32
put the data in documentary form and remove the documents
33
so produced from the vessel;
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 100
84 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(b) the power to operate electronic equipment on the vessel to
1
transfer the data to a disk, tape or other storage device that:
2
(i) is brought onto the vessel for the exercise of the power;
3
or
4
(ii) is on the vessel and the use of which for that purpose
5
has been agreed in writing by the occupier of the vessel;
6
and remove the disk, tape or other storage device from the
7
vessel.
8
(6) A marine safety inspector may operate electronic equipment as
9
mentioned in subsection (4) or (5) only if he or she believes on
10
reasonable grounds that the operation of the equipment can be
11
carried out without damage to the equipment.
12
100 Sampling, securing or seizing things found using vessel
13
monitoring powers
14
(1) This section applies if:
15
(a) a thing is found during the exercise of vessel monitoring
16
powers in relation to a domestic commercial vessel; and
17
(b) a marine safety inspector believes on reasonable grounds
18
that:
19
(i) the thing is evidential material; and
20
(ii) any of the powers under this section needs to be
21
exercised without a warrant, either because of serious
22
and urgent circumstances or because it is not practicable
23
to obtain a warrant, in order to prevent concealment,
24
loss or destruction of the evidential material.
25
Note:
For example, it may be necessary to seize evidential material after a
26
marine incident in order to prevent destruction of evidential material
27
relevant to the marine incident.
28
(2) The marine safety inspector may take a sample of the thing and
29
remove the sample from the domestic commercial vessel.
30
(3) The marine safety inspector may secure the thing for up to 72
31
hours.
32
Note:
That period may be extended: see section 123.
33
(4) The marine safety inspector may seize the thing.
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 101
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 85
(5) However, if the thing is equipment, or a disk, tape or other storage
1
device, that has been operated under section 99(4), the marine
2
safety inspector may seize the thing only if:
3
(a) it is not practicable to put all the evidential material the thing
4
contains in documentary form as mentioned in
5
section 99(5)(a) or to transfer all that evidential material as
6
mentioned in section 99(5)(b); or
7
(b) possession of the equipment or the disk, tape or other storage
8
device by the occupier of the vessel could constitute an
9
offence against a law of the Commonwealth, a State or a
10
Territory.
11
Note:
Division 7 requires marine safety inspectors to deal with seized things
12
in certain ways.
13
(6) If the marine safety inspector exercises a power under this section
14
on the basis that he or she believes on reasonable grounds the
15
power needs to be exercised without a warrant because it is not
16
practicable to obtain a warrant, he or she must give the National
17
Regulator a report describing:
18
(a) the exercise of the power; and
19
(b) the grounds for his or her belief.
20
101 Detaining domestic commercial vessels
21
(1) A marine safety inspector may detain a domestic commercial
22
vessel and bring it, or cause it to be brought, to a port, or to another
23
place that he or she considers appropriate, if the inspector
24
reasonably suspects that the vessel is, will be or has been involved
25
in a contravention, either in or outside Australia, of this Law.
26
(2) If a marine safety inspector detains a domestic commercial vessel
27
under subsection (1), the inspector must give written notice, within
28
14 days, to:
29
(a) the person who holds the certificate of operation for the
30
vessel; or
31
(b) if no such person is able to be located--the person who had
32
possession or control of the vessel immediately before it was
33
detained.
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 102
86 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(3) If the marine safety inspector cannot conveniently give the notice
1
in person, the inspector may give the notice by fixing the notice to
2
a prominent part of the vessel.
3
(4) The notice must:
4
(a) identify the vessel; and
5
(b) state that the vessel has been detained; and
6
(c) specify the reason for this; and
7
(d) specify contact details of a marine safety inspector who can
8
provide further information; and
9
(e) include information about the return of the vessel.
10
(5) The regulations may make provision for and in relation to the
11
return of detained vessels, including:
12
(a) the steps that must be taken to return detained vessels; and
13
(b) the persons to whom detained vessels are to be returned.
14
Note:
Division 7 deals with costs of detention and disposal of vessels that
15
cannot be returned.
16
(6) A person commits an offence if:
17
(a) the person operates a vessel, or causes or permits the
18
operation of a vessel, that has been detained under
19
subsection (1); and
20
(b) the vessel has not been released from detention; and
21
(c) a marine safety inspector has not consented to the operation
22
of the vessel by the person.
23
Penalty: 120 penalty units.
24
102 Offence--not complying with requirement made under
25
section 99
26
(1) A person commits an offence if:
27
(a) a requirement is made of the person:
28
(i) under section 99(2)(h) (to show, or demonstrate the
29
operation of, machinery or equipment on a domestic
30
commercial vessel); or
31
(ii) under section 99(2)(i) (to give a marine safety inspector
32
the person's name, the person's residential address, the
33
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 103
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 87
person's date of birth or evidence of the person's
1
identity); or
2
(iii) under section 99(3) (to stop or manoeuvre a vessel,
3
adopt or maintain a specified course or speed or take a
4
vessel to a specified place); and
5
(b) the person fails to comply with the requirement.
6
Penalty: 60 penalty units.
7
(2) Subsection (1) does not apply if the person has a reasonable
8
excuse.
9
Note:
A defendant bears an evidential burden in relation to the matter in
10
subsection (2) (see section 13.3(3) of the Criminal Code).
11
(3) A person commits an offence if:
12
(a) a requirement is made of the person under section 99(2)(i) to
13
give a marine safety inspector the person's name, the
14
person's residential address, the person's date of birth or
15
evidence of the person's identity; and
16
(b) the person gives a name, address, date or evidence of the
17
person's identity; and
18
(c) the name, address, date or evidence is false or misleading in a
19
material particular.
20
Penalty: 60 penalty units.
21
(4) An offence against subsection (1) or (3) is an offence of strict
22
liability.
23
Note:
For strict liability, see section 6.1 of the Criminal Code.
24
Subdivision C--Powers relating to any premises, exercisable
25
with consent or warrant
26
103 Entering premises with consent or under warrant
27
(1) A marine safety inspector may enter any premises for monitoring
28
purposes.
29
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 104
88 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(2) A marine safety inspector may enter any premises if he or she has
1
reasonable grounds for suspecting that there may be evidential
2
material on the premises.
3
(3) Despite subsections (1) and (2), a marine safety inspector is not
4
authorised to enter the premises unless:
5
(a) the occupier of the premises has consented to the entry, and:
6
(i) if the inspector has been appointed under section 91--
7
the inspector has shown his or her identity card if
8
required by the occupier; or
9
(ii) if the inspector is a member of the Australian Federal
10
Police or of the police force (however described) of a
11
State or a Territory--the inspector is in uniform, or has
12
shown his or her police identification if required by the
13
occupier; or
14
(b) the entry is made under a warrant.
15
Note 1:
This does not limit a marine safety inspector's power to enter premises
16
under section 96 or 97: see section 108.
17
Note 2:
Section 115 contains rules about obtaining consent and leaving
18
premises if consent is withdrawn.
19
Note 3:
Sections 116, 117, 118, 119 and 120 contain rules relevant to entry
20
under a warrant.
21
104 Monitoring premises
22
(1) A marine safety inspector may exercise one or more of the powers
23
(the general monitoring powers) mentioned in subsection (2) in
24
relation to premises for monitoring purposes (whether or not the
25
inspector has reasonable grounds for suspecting that there may be
26
evidential material on the premises).
27
Note:
If the inspector has reasonable grounds for suspecting that there may
28
be evidential material on the premises, section 105 gives the inspector
29
extra powers relating to that material if he or she enters the premises
30
with the occupier's consent or under an enforcement warrant.
31
(2)
The
general monitoring powers are as follows:
32
(a) the power to search the premises and any thing on the
33
premises;
34
(b) the power to examine or observe any activity conducted on
35
the premises;
36
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 104
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 89
(c) the power to inspect, examine, take measurements of or
1
conduct tests on any thing on the premises;
2
(d) the power to make any still or moving image or any
3
recording of the premises or any thing on the premises;
4
(e) the power to inspect any document on the premises;
5
(f) the power to take extracts from, or make copies of, any such
6
document;
7
(g) the power to take onto the premises such equipment and
8
materials as the inspector requires for the purpose of
9
exercising powers in relation to the premises;
10
(h) the powers set out in subsections (3), (4), (6) and (7).
11
(3)
The
general monitoring powers include the power to operate
12
electronic equipment on the premises to see whether:
13
(a) the equipment; or
14
(b) a disk, tape or other storage device that:
15
(i) is on the premises; and
16
(ii) can be used with the equipment or is associated with it;
17
contains information (data) that is relevant for monitoring
18
purposes.
19
(4)
The
general monitoring powers include the following powers
20
exercisable when on or leaving premises in relation to data found
21
in the exercise of the power under subsections (1), (2) and (3):
22
(a) the power to operate electronic equipment on the premises to
23
put the data in documentary form and remove the documents
24
so produced from the premises;
25
(b) the power to operate electronic equipment on the premises to
26
transfer the data to a disk, tape or other storage device that:
27
(i) is brought to the premises for the exercise of the power;
28
or
29
(ii) is on the premises and the use of which for that purpose
30
has been agreed in writing by the occupier of the
31
premises;
32
and remove the disk, tape or other storage device from the
33
premises.
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 105
90 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(5) A marine safety inspector may operate electronic equipment as
1
mentioned in subsection (3) or (4) only if he or she believes on
2
reasonable grounds that the operation of the equipment can be
3
carried out without damage to the equipment.
4
(6)
The
general monitoring powers include the power to secure a
5
thing on premises for up to 72 hours if:
6
(a) the thing is found during the exercise of general monitoring
7
powers on the premises; and
8
(b) a marine safety inspector believes on reasonable grounds
9
that:
10
(i) the thing affords evidence of the commission of an
11
offence against this Law; and
12
(ii) it is necessary to secure the thing in order to prevent it
13
from being concealed, lost or destroyed before a warrant
14
to seize the thing is obtained; and
15
(iii) it is necessary to secure the thing without a warrant
16
because the circumstances are serious and urgent.
17
Note:
The period for which the thing is secured may be extended: see
18
section 123.
19
105 Enforcement powers
20
(1) If a marine safety inspector has reasonable grounds for suspecting
21
that there may be evidential material on any premises, the inspector
22
may exercise the following powers (the enforcement powers) in
23
relation to the premises:
24
(a) if entry to the premises is with the occupier's consent--the
25
power to search the premises and any thing on the premises
26
for the evidential material the inspector has reasonable
27
grounds for suspecting may be on the premises;
28
(b) if entry to the premises is under an enforcement warrant:
29
(i) the power to search the premises and any thing on the
30
premises for the kind of evidential material specified in
31
the warrant; and
32
(ii) the power to seize evidential material of that kind if the
33
inspector finds it on the premises;
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 105
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 91
(c) the power to inspect, examine, take measurements of,
1
conduct tests on or take samples of evidential material
2
referred to in paragraph (a) or (b);
3
(d) the power to make any still or moving image or any
4
recording of the premises or evidential material referred to in
5
paragraph (a) or (b);
6
(e) the power to take onto the premises such equipment and
7
materials as the inspector requires for the purpose of
8
exercising powers in relation to the premises;
9
(f) the power to require a person on the premises to demonstrate
10
the operation of machinery or equipment on the premises;
11
(g) the powers set out in subsections (2), (3) and (6).
12
Note:
Division 7 requires marine safety inspectors to deal with seized things
13
in certain ways.
14
(2)
The
enforcement powers include the power to operate electronic
15
equipment on the premises to see whether:
16
(a) the equipment; or
17
(b) a disk, tape or other storage device that:
18
(i) is on the premises; and
19
(ii) can be used with the equipment or is associated with it;
20
contains evidential material referred to in subsection (1)(a) or (b).
21
(3)
The
enforcement powers include the following powers exercisable
22
when on or leaving premises in relation to evidential material
23
described in subsection (2) found in the exercise of the power
24
under that subsection:
25
(a) if entry to the premises is under an enforcement warrant--the
26
power to seize the equipment and the disk, tape or other
27
storage device referred to in that subsection;
28
(b) the power to operate electronic equipment on the premises to
29
put the evidential material in documentary form and remove
30
the documents so produced from the premises;
31
(c) the power to operate electronic equipment on the premises to
32
transfer the evidential material to a disk, tape or other storage
33
device that:
34
(i) is brought to the premises for the exercise of the power;
35
or
36
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 2 Entry, search, seizure, detention and information-gathering powers
Section 106
92 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(ii) is on the premises and the use of which for that purpose
1
has been agreed, in writing, by the occupier of the
2
premises;
3
and remove the disk, tape or other storage device from the
4
premises.
5
(4) A marine safety inspector may operate electronic equipment as
6
mentioned in subsection (2) or (3) only if he or she believes on
7
reasonable grounds that the operation of the equipment can be
8
carried out without damage to the equipment.
9
(5) A marine safety inspector may seize equipment or a disk, tape or
10
other storage device as mentioned in subsection (3)(a) only if:
11
(a) it is not practicable to put the evidential material in
12
documentary form as mentioned in subsection (3)(b) or to
13
transfer the evidential material as mentioned in
14
subsection (3)(c); or
15
(b) possession of the equipment or the disk, tape or other storage
16
device by the occupier could constitute an offence against a
17
law of the Commonwealth, a State or a Territory.
18
(6)
If:
19
(a) entry to the premises is under an enforcement warrant; and
20
(b) the marine safety inspector, in the course of searching for the
21
kind of evidential material specified in the warrant, finds a
22
thing that the inspector believes on reasonable grounds to be
23
other evidential material; and
24
(c) the inspector believes on reasonable grounds that it is
25
necessary to seize the thing in order to prevent its
26
concealment, loss or destruction;
27
then the enforcement powers include seizing the thing.
28
106 Requiring persons on premises entered under warrant to
29
answer questions and produce documents
30
(1) A marine safety inspector who is on or in premises that he or she
31
has entered under a warrant may require anyone on or in the
32
premises to:
33
(a) answer any questions put by the inspector; and
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Entry, search, seizure, detention and information-gathering powers Division 2
Section 107
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 93
(b) produce any books, records or documents requested by the
1
inspector.
2
(2) A person commits an offence if:
3
(a) a requirement is made of the person under subsection (1); and
4
(b) the person fails to comply with the requirement.
5
Penalty: 30 penalty units.
6
(3) Subsection (2) does not apply if the person has a reasonable
7
excuse.
8
Note:
A defendant bears an evidential burden in relation to the matter in
9
subsection (3) (see section 13.3(3) of the Criminal Code).
10
107 Using force in executing a warrant
11
In executing a warrant, a marine safety inspector may use such
12
force against persons and things as is necessary and reasonable in
13
the circumstances.
14
108 Relationship with Subdivision B
15
(1) This Subdivision does not limit Subdivision B.
16
(2) Subdivision B does not prevent this Subdivision from applying to
17
premises that are domestic commercial vessels.
18
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 3 Other powers
Section 109
94 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
Division 3--Other powers
1
109 Giving directions
2
(1) If a marine safety inspector believes on reasonable grounds that:
3
(a) a person is contravening a provision of this Law in respect of
4
a thing; or
5
(b) at least one of the following applies:
6
(i) it is necessary to exercise powers under this section in
7
order to protect the safety of people or to protect the
8
environment;
9
(ii) it is desirable in the public interest for the inspector to
10
exercise powers under this section;
11
the inspector may give the person a direction requiring the person,
12
within the time specified in the direction, to take such steps in
13
relation to the thing as are reasonable in the circumstances.
14
Note:
For example, a marine safety inspector could give a direction that a
15
person not operate an unsafe vessel.
16
(2) The direction must be given in writing, unless the marine safety
17
inspector believes there is an urgent need to protect the safety of
18
people or to protect the environment.
19
(3) A person commits an offence if he or she does not take the steps
20
specified in a direction under subsection (1) within the time
21
specified in the direction.
22
Penalty: 60 penalty units.
23
(4) An offence against subsection (3) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
(5) If the person does not take the steps specified in the direction
26
within the time specified in the direction, the inspector may
27
arrange for those steps to be taken.
28
(6) If the National Regulator incurs costs because of arrangements
29
made by the inspector under subsection (5), the person is liable to
30
pay to the National Regulator an amount equal to the costs, and the
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Other powers Division 3
Section 110
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 95
amount may be recovered by the National Regulator as a debt due
1
to the National Regulator in a court of competent jurisdiction.
2
(7) A time specified in a direction under subsection (1) must be
3
reasonable having regard to the circumstances.
4
110 Issuing improvement notices
5
(1) If a marine safety inspector believes on reasonable grounds that a
6
person:
7
(a) is contravening a provision of this Law; or
8
(b) has contravened a provision of this Law and is likely to
9
contravene that provision again;
10
the inspector may issue an improvement notice, in writing, to the
11
person.
12
(2) The notice must:
13
(a) specify the contravention of this Law that the marine safety
14
inspector believes is occurring or is likely to occur; and
15
(b) set out the reasons for that belief; and
16
(c) specify a period within which the person is to take the action
17
necessary to prevent any further contravention, or to prevent
18
the likely contravention, as the case may be.
19
(3) The period specified in the notice must be reasonable.
20
(4) The notice may specify action that the person is to take, or is not to
21
take, during the period specified in the notice.
22
(5) Before the end of the specified period, the marine safety inspector
23
may extend that period in writing.
24
(6) The person must ensure that the notice is complied with to the
25
extent that it relates to any matter over which the person has
26
control.
27
(7) A person subject to a requirement under subsection (6) commits an
28
offence if an act or omission of the person breaches the
29
requirement.
30
Penalty: 60 penalty units.
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 3 Other powers
Section 111
96 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(8) An offence against subsection (7) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
111 Issuing prohibition notices
3
(1) This section applies if a marine safety inspector believes on
4
reasonable grounds that:
5
(a) an activity is occurring in relation to a domestic commercial
6
vessel that involves or will involve a risk to the safety of a
7
person or a serious risk to the environment; or
8
(b) an activity may occur in relation to a domestic commercial
9
vessel that, if it occurs, will involve a risk to the safety of a
10
person or a serious risk to the environment.
11
(2) The marine safety inspector may issue a prohibition notice to the
12
responsible person in relation to the domestic commercial vessel.
13
For this purpose, the responsible person is:
14
(a) the master of the vessel; or
15
(b) if the inspector cannot locate the master:
16
(i) the person who holds the certificate of operation for the
17
vessel; or
18
(ii) if the inspector cannot locate that person--the person
19
who has possession or control of the vessel.
20
(3) The notice must:
21
(a) specify the activity the marine safety inspector believes
22
involves or will involve the risk to safety or the environment,
23
and set out the reasons for that belief; and
24
(b)
either:
25
(i) direct the responsible person to ensure that the activity
26
is not engaged in; or
27
(ii) direct the responsible person to ensure that the activity
28
is not engaged in in a specified manner.
29
Note:
For example, a notice could specify that a person not operate an
30
unsafe vessel.
31
(4) A specified manner may relate to any one or more of the following:
32
(a) any vessel, or part of a vessel, in relation to which the
33
activity is not to be engaged in;
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Other powers Division 3
Section 112
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 97
(b) any thing that is not to be used in connection with the
1
activity;
2
(c) any procedure that is not to be followed in connection with
3
the activity.
4
(5) The notice ceases to have effect when a marine safety inspector
5
notifies the responsible person that the inspector is satisfied that the
6
responsible person has taken adequate action to remove the risk to
7
safety or the environment.
8
(6) The notice may specify action that may be taken to satisfy a marine
9
safety inspector that adequate action has been taken to remove the
10
risk to safety or the environment.
11
(7) If a marine safety inspector is satisfied that action taken by the
12
responsible person to remove the risk to safety or the environment
13
is not adequate, the inspector must inform the person accordingly.
14
(8) In making a decision under subsection (7), a marine safety
15
inspector may exercise any of the vessel monitoring powers and
16
general monitoring powers that the inspector considers necessary
17
for the purposes of making the decision.
18
(9) A person issued with a notice under subsection (2) commits an
19
offence if an act or omission of the person breaches the notice.
20
Penalty: 60 penalty units.
21
(10) An offence against subsection (9) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
112 Copies of notices to be displayed and distributed
24
(1) If a person (the recipient) is given an improvement notice under
25
section 110(1) or a prohibition notice under section 111(2) in
26
relation to a vessel:
27
(a) the recipient must cause a copy of the notice to be displayed:
28
(i) in a place directed by the marine safety inspector who
29
issued the notice; or
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 3 Other powers
Section 113
98 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
(ii) if the marine safety inspector does not give a
1
direction--in a prominent place on or near the vessel;
2
and
3
(b) the marine safety inspector who issued the notice must give a
4
copy of the notice to:
5
(i) the master of the vessel; and
6
(ii) the person who holds the certificate of operation for the
7
vessel or, if no such person is able to be located, the
8
person who had possession or control of the vessel
9
immediately before the notice was issued.
10
(2) A person required by subsection (1)(a) to display a notice commits
11
an offence if an act or omission of the person contravenes the
12
requirement.
13
Penalty: 60 penalty units.
14
(3) An offence against subsection (2) is an offence of strict liability.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
113 Notices not to be tampered with or removed
17
(1) A person must not:
18
(a) tamper with a notice while it is displayed under section 112;
19
or
20
(b) remove a notice that has been displayed before the notice has
21
ceased to have effect.
22
Penalty: 60 penalty units.
23
(2) Subsection (1) does not apply if the person has a reasonable
24
excuse.
25
Note:
A defendant bears an evidential burden in relation to the matter in
26
subsection (2) (see section 13.3(3) of the Criminal Code).
27
(3) An offence against subsection (1) is an offence of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Persons assisting marine safety inspectors Division 4
Section 114
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012 99
Division 4--Persons assisting marine safety inspectors
1
114 Persons assisting marine safety inspectors
2
(1) A marine safety inspector may be assisted by other persons in
3
exercising powers or performing functions or duties under this
4
Part, if that assistance is necessary and reasonable. A person giving
5
such assistance is a person assisting the inspector.
6
(2) A person assisting the marine safety inspector:
7
(a) may enter the premises; and
8
(b) may exercise powers and perform functions and duties under
9
this Part; and
10
(c) must do so in accordance with a direction given by the
11
inspector to the person assisting.
12
(3) In executing a warrant, a person assisting the marine safety
13
inspector may use such force against things as is necessary and
14
reasonable in the circumstances.
15
(4) A power exercised by a person assisting the marine safety
16
inspector as mentioned in subsection (2) is taken for all purposes to
17
have been exercised by the inspector.
18
(5) A function or duty performed by a person assisting the marine
19
safety inspector as mentioned in subsection (2) is taken for all
20
purposes to have been performed by the inspector.
21
22
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 5 Obligations and incidental powers of marine safety inspectors
Section 115
100 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Division 5--Obligations and incidental powers of marine
1
safety inspectors
2
115 Consent
3
(1) A marine safety inspector must, before obtaining the consent of an
4
occupier of premises for the purposes of section 103(3)(a), inform
5
the occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If a marine safety inspector entered premises under section 103
13
because of the consent of the occupier of the premises, the
14
inspector, and any person assisting the inspector, must leave the
15
premises if the consent ceases to have effect.
16
116 Announcement before entry under warrant
17
(1) A marine safety inspector must, before entering premises under a
18
warrant:
19
(a) announce that he or she is authorised to enter the premises;
20
and
21
(b) if the inspector was appointed under section 91--show his or
22
her identity card to the occupier of the premises if the
23
occupier is present at the premises; and
24
(c) if the inspector is a member of the Australian Federal Police
25
or of the police force (however described) of a State or a
26
Territory and is not in uniform--show his or her police
27
identification to the occupier of the premises if the occupier
28
is present at the premises; and
29
(d) give any person at the premises an opportunity to allow entry
30
to the premises.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Obligations and incidental powers of marine safety inspectors Division 5
Section 117
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
101
(2) However, a marine safety inspector is not required to comply with
1
subsection (1) if he or she believes on reasonable grounds that
2
immediate entry to the premises is required:
3
(a) to ensure the safety of a person; or
4
(b) to ensure that the effective execution of the warrant is not
5
frustrated.
6
(3)
If:
7
(a) a marine safety inspector does not comply with
8
subsection (1) because of subsection (2); and
9
(b) the occupier of the premises is present at the premises;
10
the inspector must, as soon as practicable after entering the
11
premises, show his or her identity card or police identification to
12
the occupier.
13
117 Marine safety inspector to be in possession of warrant
14
If a warrant is being executed in relation to premises, a marine
15
safety inspector executing the warrant must be in possession of the
16
warrant or a copy of the warrant.
17
118 Details of warrant etc. to be given to occupier
18
If:
19
(a) a warrant is being executed in relation to premises; and
20
(b) the occupier of the premises is present at the premises;
21
a marine safety inspector executing the warrant must, as soon as
22
practicable:
23
(c) make a copy of the warrant available to the occupier (which
24
need not include the signature of the magistrate who issued
25
it); and
26
(d) inform the occupier of the rights and responsibilities of the
27
occupier under Division 6.
28
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 5 Obligations and incidental powers of marine safety inspectors
Section 119
102 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
119 Completing execution of warrant after temporary cessation
1
(1) This section applies if a marine safety inspector, and all persons
2
assisting, who are executing a warrant in relation to premises
3
temporarily cease its execution and leave the premises.
4
(2) The marine safety inspector, and persons assisting, may complete
5
the execution of the warrant if:
6
(a) the warrant is still in force; and
7
(b) the inspector and persons assisting are absent from the
8
premises:
9
(i) for not more than 1 hour; or
10
(ii) if there is an emergency--for not more than 12 hours or
11
such longer period as allowed by a magistrate under
12
subsection (5); or
13
(iii) for a longer period if the occupier of the premises
14
consents in writing.
15
(3) A marine safety inspector, or person assisting, may apply to a
16
magistrate for an extension of the 12-hour period mentioned in
17
subsection (2)(b)(ii) if:
18
(a) there is an emergency; and
19
(b) the inspector or person assisting believes on reasonable
20
grounds that the inspector and the persons assisting will not
21
be able to return to the premises within that period.
22
(4) If it is practicable to do so, before making the application, the
23
marine safety inspector or person assisting must give notice to the
24
occupier of the premises of his or her intention to apply for an
25
extension.
26
(5) A magistrate may extend the period during which the marine safety
27
inspector and persons assisting may be away from the premises if:
28
(a) an application is made under subsection (3); and
29
(b) the magistrate is satisfied, by information on oath or
30
affirmation, that there are exceptional circumstances that
31
justify the extension; and
32
(c) the extension would not result in the period ending after the
33
warrant ceases to be in force.
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Obligations and incidental powers of marine safety inspectors Division 5
Section 120
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
103
120 Completing execution of warrant stopped by court order
1
A marine safety inspector, and any persons assisting, may
2
complete the execution of a warrant that has been stopped by an
3
order of a court if:
4
(a) the order is later revoked or reversed on appeal; and
5
(b) the warrant is still in force when the order is revoked or
6
reversed.
7
121 Expert assistance to operate electronic equipment
8
(1) This section applies to premises to which a warrant relates.
9
(2) If a marine safety inspector believes on reasonable grounds that:
10
(a) there is on the premises information (data) relevant to the
11
monitoring purposes or determining whether there is
12
evidential material on the premises; and
13
(b) the data may be accessible by operating electronic equipment
14
on the premises; and
15
(c) expert assistance is required to operate the equipment; and
16
(d) if he or she does not take action under this subsection, the
17
data may be destroyed, altered or otherwise interfered with;
18
he or she may do whatever is necessary to secure the equipment for
19
up to 72 hours, whether by locking it up, placing a guard or other
20
means.
21
(3) The marine safety inspector must give notice to the occupier of the
22
premises of his or her intention to secure the equipment and of the
23
fact that the equipment may be secured for up to 72 hours.
24
Note:
That period may be extended: see section 123.
25
122 Compensation for damage to electronic equipment
26
(1) This section applies if:
27
(a) as a result of electronic equipment being operated as
28
mentioned in this Part:
29
(i) damage is caused to the equipment; or
30
(ii) the data recorded on the equipment is damaged; or
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 5 Obligations and incidental powers of marine safety inspectors
Section 123
104 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(iii) programs associated with the use of the equipment, or
1
with the use of the data, are damaged or corrupted; and
2
(b) the damage or corruption occurs because:
3
(i) insufficient care was exercised in selecting the person
4
who was to operate the equipment; or
5
(ii) insufficient care was exercised by the person operating
6
the equipment.
7
(2) The National Regulator must pay the owner of the equipment, or
8
the user of the data or programs, such reasonable compensation for
9
the damage or corruption as the National Regulator and the owner
10
or user agree on.
11
(3) However, if the owner or user and the National Regulator fail to
12
agree, the owner or user may institute proceedings in a court of
13
competent jurisdiction for such reasonable amount of
14
compensation as the court determines.
15
(4) In determining the amount of compensation payable, regard is to
16
be had to whether the occupier of the premises, or the occupier's
17
employees or agents, if they were available at the time, provided
18
any appropriate warning or guidance on the operation of the
19
equipment.
20
(5) For the purposes of subsection (1):
21
damage, in relation to data, includes damage by erasure of data or
22
addition of other data.
23
123 Extending period for which something is secured
24
(1) If a marine safety inspector believes on reasonable grounds that a
25
thing needs to be secured under section 100(3), 104(6) or 121(2)
26
for more than 72 hours, he or she may apply to a magistrate for an
27
extension of that period.
28
(2) The marine safety inspector must give notice to the occupier of the
29
premises on which the thing is secured of the inspector's intention
30
to apply for an extension. The occupier is entitled to be heard in
31
relation to that application.
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Obligations and incidental powers of marine safety inspectors Division 5
Section 124
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
105
(3) The provisions of this Part relating to the issue of warrants apply,
1
with such modifications as are necessary, to the issue of an
2
extension.
3
(4) The 72-hour period may be extended more than once.
4
124 Offence--interfering with securing of thing
5
A person commits an offence if:
6
(a) a marine safety inspector is securing, or has secured, a thing
7
under section 100(3), 104(6) or 121(2); and
8
(b) the person interferes with the securing of the thing, or the
9
secured thing; and
10
(c) the period for which the thing is secured has not ended.
11
Penalty: 500 penalty units.
12
13
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 6 Occupier's rights and responsibilities
Section 125
106 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Division 6--Occupier's rights and responsibilities
1
125 Occupier entitled to observe execution of warrant
2
(1)
If:
3
(a) a warrant is being executed in relation to premises; and
4
(b) the occupier of the premises is present at the premises;
5
the occupier is entitled to observe the execution of the warrant.
6
(2) The right to observe the execution of the warrant ceases if the
7
occupier impedes that execution.
8
(3) This section does not prevent the execution of the warrant in 2 or
9
more areas of the premises at the same time.
10
126 Occupier to provide marine safety inspector with facilities and
11
assistance
12
(1) The occupier of premises to which a warrant relates must provide:
13
(a) a marine safety inspector executing the warrant; and
14
(b) any person assisting the inspector;
15
with all reasonable facilities and assistance for the effective
16
exercise of their powers.
17
(2) A person subject to subsection (1) commits an offence if the person
18
fails to comply with that subsection.
19
Penalty: 30 penalty units.
20
(3) An offence against subsection (2) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
23
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
General provisions relating to seizure and detention Division 7
Section 127
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
107
Division 7--General provisions relating to seizure and
1
detention
2
127 Copies of seized things to be provided
3
(1) This section applies if a marine safety inspector seizes one or more
4
of the following from the premises under this Part:
5
(a) a document, film, computer file or other thing that can be
6
readily copied;
7
(b) a storage device, the information in which can be readily
8
copied.
9
(2) The occupier of the premises may request the marine safety
10
inspector to give a copy of the thing or the information to the
11
occupier.
12
(3) The marine safety inspector must comply with the request as soon
13
as practicable after the seizure.
14
(4) However, the marine safety inspector is not required to comply
15
with the request if possession of the document, film, computer file,
16
thing or information by the occupier could constitute an offence
17
against a law of the Commonwealth, a State or a Territory.
18
128 Receipts for seized things
19
(1) If a thing is seized under this Part, a marine safety inspector must
20
provide a receipt for the thing.
21
(2) If 2 or more things are seized, they may be covered in the one
22
receipt.
23
129 Return of seized things
24
(1) The marine safety inspector must take reasonable steps to return a
25
thing seized under this Part when the earliest of the following
26
happens:
27
(a) the reason for the thing's seizure no longer exists;
28
(b) it is decided that the thing is not to be used in evidence;
29
(c) the period of 60 days after the thing's seizure ends.
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 7 General provisions relating to seizure and detention
Section 130
108 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Note:
See subsections (2) and (3) for exceptions to this rule.
1
Exceptions
2
(2)
Subsection
(1):
3
(a) is subject to any contrary order of a court; and
4
(b) does not apply if the thing:
5
(i) is forfeited or forfeitable to the Commonwealth; or
6
(ii) is the subject of a dispute as to ownership.
7
(3) The marine safety inspector is not required to take reasonable steps
8
to return a thing because of subsection (1)(c) if:
9
(a) proceedings in respect of which the thing may afford
10
evidence were instituted before the end of the 60 days and
11
have not been completed (including an appeal to a court in
12
relation to those proceedings); or
13
(b) the thing may continue to be retained because of an order
14
under section 130; or
15
(c) the Commonwealth, the National Regulator or a marine
16
safety inspector is otherwise authorised (by a law, or an order
17
of a court, of the Commonwealth, a State or a Territory) to
18
retain, destroy, dispose of or otherwise deal with the thing.
19
Return of thing
20
(4) A thing that is required to be returned under this section must be
21
returned to the person from whom it was seized (or to the owner if
22
that person is not entitled to possess it).
23
130 Magistrate may permit a thing to be retained
24
(1) A marine safety inspector may apply to a magistrate for an order
25
permitting the retention of the thing for a further period if:
26
(a) before the end of 60 days after the seizure; or
27
(b) before the end of a period previously specified in an order of
28
a magistrate under this section;
29
proceedings in respect of which the thing may afford evidence
30
have not been instituted.
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
General provisions relating to seizure and detention Division 7
Section 131
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
109
(2) If the magistrate is satisfied that it is necessary for the thing to
1
continue to be retained:
2
(a) for the purposes of an investigation in respect of an offence
3
against this Law; or
4
(b) to enable evidence of an offence against this Law to be
5
secured for the purposes of a prosecution;
6
the magistrate may order that the thing may continue to be retained
7
for a period specified in the order (which must not exceed 3 years).
8
(3) Before making the application, the marine safety inspector must:
9
(a) take reasonable steps to discover who has an interest in the
10
retention of the thing; and
11
(b) if it is practicable to do so, notify each person whom the
12
inspector believes to have such an interest of the proposed
13
application.
14
131 Costs of detention
15
(1) The National Regulator is liable to pay to the owner of a domestic
16
commercial vessel a reasonable amount of compensation:
17
(a) for the costs of, and incidental to, the detention of the vessel;
18
and
19
(b) for any loss or damage incurred by the owner as a result of
20
the detention of the vessel;
21
if there was no reasonable or probable cause for the detention of
22
the vessel.
23
(2)
If:
24
(a) a domestic commercial vessel is detained under this Division;
25
and
26
(b) the National Regulator incurs costs in connection with the
27
detention of the vessel; and
28
(c) the detention was reasonable in the circumstances;
29
the owner of the vessel is liable to pay to the National Regulator
30
compensation of a reasonable amount in respect of the detention of
31
the vessel.
32
(3) If the National Regulator and the owner of the vessel do not agree
33
on the amount of compensation payable under subsection (1) or
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 7 General provisions relating to seizure and detention
Section 132
110 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(2), the National Regulator or the owner may institute proceedings
1
in a court of competent jurisdiction for the recovery of such
2
reasonable amount of compensation as the court determines.
3
132 Disposal of seized things and detained vessels
4
(1) The National Regulator may dispose of a thing seized, or a vessel
5
detained, under this Part if:
6
(a) the National Regulator has:
7
(i) in the case of a seized thing--taken reasonable steps to
8
return the thing to a person; or
9
(ii) in the case of a detained vessel--taken the steps
10
required by the regulations to return the vessel to a
11
person; and
12
(b) one of the following applies:
13
(i) the National Regulator has been unable to locate the
14
person, despite making reasonable efforts;
15
(ii) the person has refused to take possession of the thing or
16
vessel;
17
(iii) the National Regulator has contacted the person about
18
the return of the thing or vessel, and the person has not
19
refused to take possession of the thing or vessel, but has
20
not taken possession of the thing or vessel within 3
21
months of the contact.
22
(2) The National Regulator may dispose of the thing or vessel in such
23
manner as the National Regulator thinks appropriate.
24
133 Compensation for acquisition of property
25
(1) If the operation of section 132 would result in an acquisition of
26
property from a person otherwise than on just terms, the National
27
Regulator is liable to pay a reasonable amount of compensation to
28
the person.
29
(2) If the National Regulator and the person do not agree on the
30
amount of the compensation, the person may institute proceedings
31
in a court of competent jurisdiction for the recovery from the
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
General provisions relating to seizure and detention Division 7
Section 133
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
111
National Regulator of such reasonable amount of compensation as
1
the court determines.
2
3
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 8 Warrants
Section 134
112 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Division 8--Warrants
1
134 Monitoring warrants
2
(1) A marine safety inspector may apply to a magistrate for a warrant
3
under this section in relation to premises.
4
(2) The magistrate may issue the warrant if the magistrate is satisfied,
5
by information on oath or affirmation, that it is reasonably
6
necessary that one or more marine safety inspectors should have
7
access to the premises for monitoring purposes.
8
(3) However, the magistrate must not issue the warrant unless the
9
marine safety inspector or some other person has given to the
10
magistrate, either orally or by affidavit, such further information (if
11
any) as the magistrate requires concerning the grounds on which
12
the issue of the warrant is being sought.
13
(4)
The
warrant
must:
14
(a) describe the premises to which the warrant relates; and
15
(b) state that the warrant is issued under this section; and
16
(c) state the purpose for which the warrant is issued; and
17
(d) authorise one or more marine safety inspectors (whether or
18
not named in the warrant) from time to time while the
19
warrant remains in force:
20
(i) to enter the premises; and
21
(ii) to exercise the powers set out in sections 103, 104, 106
22
and 107, and Division 5, in relation to the premises; and
23
(e) state whether entry is authorised to be made at any time of
24
the day or during specified hours of the day; and
25
(f) specify the day (not more than 6 months after the issue of the
26
warrant) on which the warrant ceases to be in force.
27
135 Enforcement warrants
28
(1) A marine safety inspector may apply to a magistrate for a warrant
29
under this section in relation to premises.
30
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Warrants Division 8
Section 136
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
113
(2) The magistrate may issue the warrant if the magistrate is satisfied,
1
by information on oath or affirmation, that there are reasonable
2
grounds for suspecting that there is, or there may be within the next
3
72 hours, evidential material on the premises.
4
(3) However, the magistrate must not issue the warrant unless the
5
marine safety inspector or some other person has given to the
6
magistrate, either orally or by affidavit, such further information (if
7
any) as the magistrate requires concerning the grounds on which
8
the issue of the warrant is being sought.
9
(4)
The
warrant
must:
10
(a) describe the premises to which the warrant relates; and
11
(b) state that the warrant is issued under this section; and
12
(c) specify the offence or offences to which the warrant relates;
13
and
14
(d) specify the kind of evidential material that is to be searched
15
for under the warrant; and
16
(e) name one or more marine safety inspectors; and
17
(f) authorise the inspector or inspectors so named:
18
(i) to enter the premises; and
19
(ii) to exercise the powers set out in sections 103, 105, 106
20
and 107, Division 5 and section 130 in relation to the
21
premises; and
22
(g) state whether the entry is authorised to be made at any time
23
of the day or during specified hours of the day; and
24
(h) specify the day (not more than 1 week after the issue of the
25
warrant) on which the warrant ceases to be in force.
26
136 Enforcement warrants by telephone, fax etc.
27
(1) A marine safety inspector may apply to a magistrate by telephone,
28
fax or other electronic means for a warrant under section 135 in
29
relation to premises:
30
(a) in an urgent case; or
31
(b) if the inspector believes, on reasonable grounds, that the
32
delay that would occur if an application were made in person
33
would frustrate the effective execution of the warrant.
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 8 Warrants
Section 136
114 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(2) The magistrate may require communication by voice to the extent
1
that it is practicable in the circumstances.
2
(3) An application under this section must include all information (of
3
the kind mentioned in section 135(2)) in relation to the premises
4
that sets out the grounds on which the warrant is sought. If it is
5
necessary to do so, the inspector may apply for the warrant before
6
the information is sworn or affirmed.
7
(4) If the magistrate is satisfied:
8
(a) after considering the information; and
9
(b) after receiving such further information (if any) as the
10
magistrate requires concerning the grounds on which the
11
issue of the warrant is being sought;
12
that there are reasonable grounds for issuing the warrant, the
13
magistrate may complete and sign the same warrant that the
14
magistrate would issue under section 135 if the application had
15
been made under that section.
16
(5) If the magistrate completes and signs the warrant, the magistrate
17
must inform the inspector, by telephone, fax or other electronic
18
means, of:
19
(a) the terms of the warrant; and
20
(b) the day on which, and the time at which, the warrant was
21
signed.
22
(6) The marine safety inspector must then complete a form of warrant
23
in the same terms as the warrant completed and signed by the
24
magistrate, stating on the form:
25
(a) the name of the magistrate; and
26
(b) the day on which, and the time at which, the warrant was
27
signed.
28
(7) The marine safety inspector must also, not later than the day after
29
the earlier of the following days:
30
(a) the day on which the warrant ceased to be in force;
31
(b) the day of execution of the warrant;
32
send to the magistrate:
33
(c) the form of warrant completed by the inspector; and
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Powers of marine safety inspectors Part 6
Warrants Division 8
Section 137
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
115
(d) the information referred to in subsection (3), which must
1
have been duly sworn or affirmed.
2
(8) The magistrate must attach to the documents provided under
3
subsection (7) the warrant signed by the magistrate.
4
(9) A form of warrant duly completed under subsection (6) is authority
5
for the same powers as are authorised by the warrant signed by the
6
magistrate.
7
(10)
If:
8
(a) it is material, in any proceedings, for a court to be satisfied
9
that an exercise of a power was authorised by this section;
10
and
11
(b) the warrant signed by the magistrate authorising the exercise
12
of the power is not produced in evidence;
13
the court must assume, unless the contrary is proved, that the
14
exercise of the power was not authorised by such a warrant.
15
137 Offence relating to warrants by telephone, fax etc.
16
A marine safety inspector commits an offence if:
17
(a) the inspector states in a document that purports to be a form
18
of warrant under section 136 the name of a magistrate, unless
19
that magistrate signed the warrant; or
20
(b) the inspector states on a form of warrant under that section a
21
matter that, to the inspector's knowledge, departs in a
22
material particular from the terms of the warrant signed by
23
the magistrate under that section; or
24
(c) the inspector purports to execute, or present to another
25
person, a document that purports to be a form of warrant
26
under that section that the inspector knows:
27
(i) has not been approved by a magistrate under that
28
section; or
29
(ii) departs in a material particular from the terms of a
30
warrant signed by a magistrate under that section; or
31
(d) the inspector gives to a magistrate a form of warrant under
32
that section that is not the form of warrant that the inspector
33
purported to execute.
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 6 Powers of marine safety inspectors
Division 8 Warrants
Section 137
116 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Penalty: Imprisonment for 2 years.
1
2
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
Infringement notices Part 7
Section 138
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
117
Part 7--Infringement notices
1
2
138 Infringement notices
3
(1) The regulations may make provision for and in relation to enabling
4
a person who is alleged to have committed an offence against this
5
Law to pay a penalty to the Commonwealth as an alternative to
6
prosecution.
7
(2) The penalty must equal one-fifth of the maximum fine that a court
8
could impose on the person as a penalty for that offence.
9
10
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 1 Review of decisions
Section 139
118 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Part 8--General matters
1
Division 1--Review of decisions
2
139 Reviewable decisions
3
The following decisions by the National Regulator are reviewable
4
decisions:
5
(a) to refuse to issue a certificate under the following:
6
(i)
section
38(1);
7
(ii)
section
48(1);
8
(iii)
section
60(1);
9
(b) to refuse to issue a unique identifier under section 31(1);
10
(c) to impose a condition on a certificate under the following:
11
(i)
section
38(3)(b);
12
(ii)
section
48(4)(b);
13
(iii)
section
60(3)(b);
14
(d) to refuse to vary a certificate under the following:
15
(i)
section
40(1);
16
(ii)
section
50(1);
17
(iii)
section
62(1);
18
(e) to vary a certificate under the following:
19
(i)
section
40(2);
20
(ii)
section
50(2);
21
(iii)
section
62(2);
22
(f) to refuse to suspend a certificate under the following:
23
(i)
section
41(1);
24
(ii)
section
51(1);
25
(iii)
section
63(1);
26
(g) to suspend a certificate under the following:
27
(i)
section
41(2);
28
(ii)
section
51(2);
29
(iii)
section
63(2);
30
(h) to refuse to revoke a certificate under the following:
31
(i)
section
42(1);
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Review of decisions Division 1
Section 140
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
119
(ii)
section
52(1);
1
(iii)
section
64(1);
2
(i) to revoke a certificate under the following:
3
(i)
section
42(2);
4
(ii)
section
52(2);
5
(iii)
section
64(2);
6
(j) to refuse to recognise a certificate under section 73(1);
7
(k) to specify a condition under section 73(3);
8
(l) to give a direction under section 109(1);
9
(m) to issue a provisional improvement notice under
10
section 110(1);
11
(n) to issue prohibition notice under section 111(1);
12
(o) to detain a vessel under section 101(1);
13
(p) to refuse to grant an exemption under section 143, other than
14
an exemption granted on the initiative of the National
15
Regulator;
16
(q) to impose a condition on an exemption under section 143,
17
other than an exemption granted on the initiative of the
18
National Regulator.
19
140 Internal review of reviewable decisions
20
(1) The National Regulator must, as soon as practicable after a
21
reviewable decision is made in relation to a person, give a written
22
notice to the person containing:
23
(a) the terms of the decision; and
24
(b) the reasons for the decision; and
25
(c) a statement setting out particulars of the person's right to
26
have the decision reviewed under this section.
27
(2) A person to whom a reviewable decision referred to in
28
subsection (1) relates may apply to the National Regulator for
29
review of the decision.
30
(3) An application for review must:
31
(a) be in the form approved by the National Regulator; and
32
(b) contain the information required by the regulations; and
33
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 1 Review of decisions
Section 141
120 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(c) be made within 30 days after the day on which the written
1
notice of the decision was given to the applicant, or within
2
such period (if any) as the National Regulator, either before
3
or after the end of the 30-day period, allows.
4
(4) The National Regulator must, on receiving an application under
5
subsection (3) for review of a reviewable decision, cause the
6
decision to be reviewed by a person to whom the National
7
Regulator power under this section is delegated, being a person
8
who:
9
(a) was not involved in making the decision; and
10
(b) occupies a position that is senior to that occupied by any
11
person involved in making the decision.
12
(5) A person who reviews a reviewable decision under this section
13
may:
14
(a) make a decision affirming, varying or revoking the
15
reviewable decision; and
16
(b) if the person revokes the decision--make such other decision
17
as the person thinks appropriate.
18
(6) A failure to comply with the requirements of subsection (1) in
19
relation to a decision does not affect the validity of the decision.
20
141 Applications for AAT review
21
Applications may be made to the Administrative Appeals Tribunal
22
for review of a decision under section 140(5).
23
Note: The
Administrative Appeals Tribunal Act 1975 of the Commonwealth
24
provides for the manner of applying for review, etc.
25
142 Review of decisions made under the regulations
26
The regulations may provide for:
27
(a) internal review of decisions made under the regulations; and
28
(b) the making of applications to the Administrative Appeals
29
Tribunal for review of decisions under the regulations.
30
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Exemptions Division 2
Section 143
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
121
Division 2--Exemptions
1
143 Power of exemption
2
(1) The National Regulator may exempt from the application of this
3
Law, or specified provisions of this Law:
4
(a) a specified vessel or class of vessels; or
5
(b) a specified person or class of persons.
6
(2) The exemption may be confined to one or both of the following:
7
(a) one or more specified periods;
8
(b) one or more specified operations.
9
(3) For the purposes of an exemption for one or more specified
10
periods, of a vessel that is specified or is in a specified class, the
11
periods may be specified as periods for which a specified use is
12
being made of the vessel.
13
(4) An exemption may be granted:
14
(a) on application in accordance with the regulations by a
15
person; or
16
(b) on the initiative of the National Regulator.
17
(5) An exemption is subject to such conditions (if any) as are specified
18
in the instrument of exemption.
19
(6) The National Regulator must not grant an exemption, or impose
20
conditions under subsection (5), unless the National Regulator is
21
satisfied that the exemption concerned, taken together with the
22
conditions to which it is subject, will not jeopardise the safety of a
23
vessel or a person on board a vessel.
24
(7) An exemption granted under subsection (1) is not a legislative
25
instrument.
26
144 Offence of breaching a condition of exemption (owner)
27
(1) The owner of a domestic commercial vessel commits an offence if:
28
(a) an exemption under section 143 in relation to the vessel is
29
subject to a condition; and
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 2 Exemptions
Section 145
122 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(b) the owner breaches, or causes or permits another person to
1
breach, the condition.
2
Penalty: 60 penalty units.
3
(2) An offence against subsection (1) is an offence of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
145 Offence of breaching a condition of exemption (master)
6
(1) The master of a domestic commercial vessel commits an offence if:
7
(a) an exemption under section 143 in relation to the vessel is
8
subject to a condition; and
9
(b) the master breaches, or causes or permits another person to
10
breach, the condition.
11
Penalty: 60 penalty units.
12
(2) An offence against subsection (1) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
146 Offence of breaching a condition of exemption (all persons)
15
(1) A person commits an offence if:
16
(a) an exemption under section 143 in relation to the person is
17
subject to a condition; and
18
(b) the person breaches the condition.
19
Penalty: 60 penalty units.
20
(2) An offence against subsection (1) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
23
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Application of National Law to certain bodies Division 3
Section 147
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
123
Division 3--Application of National Law to certain bodies
1
147 Treatment of partnerships
2
(1) This Law applies to a partnership as if it were a person, but with
3
the changes set out in this section.
4
(2) An obligation that would otherwise be imposed on the partnership
5
by this Law is imposed on each partner instead, but may be
6
discharged by any of the partners.
7
(3) An offence against this Law that would otherwise be committed by
8
the partnership is taken to have been committed by each partner.
9
(4) A partner does not commit an offence because of subsection (3) if
10
the partner:
11
(a) does not know of the circumstances that constitute the
12
contravention of the provision concerned; or
13
(b) knows of those circumstances but takes all reasonable steps
14
to correct the contravention as soon as possible after the
15
partner becomes aware of those circumstances.
16
Note:
A defendant bears an evidential burden in relation to the matters in
17
subsection (4) (see section 13.3(3) of the Criminal Code).
18
(5) For the purposes of this Law, a change in the composition of a
19
partnership does not affect the continuity of the partnership.
20
148 Treatment of unincorporated associations
21
(1) This Law applies to an unincorporated association as if it were a
22
person, but with the changes set out in this section.
23
(2) An obligation that would otherwise be imposed on the association
24
by this Law is imposed on each member of the association's
25
committee of management instead, but may be discharged by any
26
of the members.
27
(3) An offence against this Law that would otherwise be committed by
28
the association is taken to have been committed by each member of
29
the association's committee of management.
30
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 3 Application of National Law to certain bodies
Section 149
124 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(4) A member of the association's committee of management does not
1
commit an offence because of subsection (3) if the member:
2
(a) does not know of the circumstances that constitute the
3
contravention of the provision concerned; or
4
(b) knows of those circumstances but takes all reasonable steps
5
to correct the contravention as soon as possible after the
6
member becomes aware of those circumstances.
7
Note:
A defendant bears an evidential burden in relation to the matters in
8
subsection (4) (see section 13.3(3) of the Criminal Code).
9
149 Treatment of trusts with multiple trustees
10
(1) If a trust has 2 or more trustees, this Law applies to the trust as if it
11
were a person, but with the changes set out in this section.
12
Note:
A trust may be an owner of a vessel (see the definitions of entity and
13
owner in section 6).
14
(2) An obligation that would otherwise be imposed on the trust by this
15
Law is imposed on each trustee instead, but may be discharged by
16
any of the trustees.
17
(3) An offence against this Law that would otherwise be committed by
18
the trust is taken to have been committed by each trustee.
19
(4) A trustee does not commit an offence because of subsection (3) if
20
the trustee:
21
(a) does not know of the circumstances that constitute the
22
contravention of the provision concerned; or
23
(b) knows of those circumstances but takes all reasonable steps
24
to correct the contravention as soon as possible after the
25
trustee becomes aware of those circumstances.
26
Note:
A defendant bears an evidential burden in relation to the matters in
27
subsection (4) (see section 13.3(3) of the Criminal Code).
28
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Fees Division 4
Section 150
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
125
Division 4--Fees
1
150 Charging of fees by the National Regulator
2
(1) The National Regulator may charge such fees as are prescribed by
3
the regulations for things done by the National Regulator under this
4
Law.
5
(2) The fee is payable to the National Regulator.
6
(3) The fee must not be such as to amount to taxation.
7
(4) If the fee is unpaid, it is a debt due to the National Regulator and is
8
recoverable in a court of competent jurisdiction.
9
151 Charging of fees by accredited persons
10
(1) An accredited person who:
11
(a) is not an officer or employee of the Commonwealth, a State
12
or the Northern Territory, or of an agency of the
13
Commonwealth, a State or the Northern Territory; or
14
(b) is such an officer or employee, but does a thing under this
15
Law other than in that capacity;
16
may charge another person the fee agreed between the accredited
17
person and the other person for a thing done by the accredited
18
person under this Law.
19
(2) The fee is payable to the accredited person.
20
(3) The fee must not be such as to amount to taxation.
21
(4) If the fee is unpaid, it is a debt due to the accredited person and is
22
recoverable in a court of competent jurisdiction.
23
24
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 5 Disclosure of information
Section 152
126 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Division 5--Disclosure of information
1
152 Disclosure of information by certain persons to the National
2
Regulator
3
Any of the following may disclose to the National Regulator
4
information (including personal information) that may be relevant
5
to the administration of this Law:
6
(a) a delegate or sub-delegate of the National Regulator;
7
(b) a maritime safety inspector;
8
(c) an accredited person;
9
(d) an approved training organisation.
10
Note:
Section 11 of the Australian Maritime Safety Authority Act 1990 of
11
the Commonwealth authorises the National Regulator to disclose
12
information (including personal information).
13
14
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Immunity from suit Division 6
Section 153
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
127
Division 6--Immunity from suit
1
153 Immunity from suit
2
(1) Criminal or civil proceedings do not lie against:
3
(a) the National Regulator; or
4
(b) a member of the staff of the National Regulator; or
5
(c) a delegate or sub-delegate of the National Regulator; or
6
(d) an agency of which such a delegate or sub-delegate is an
7
employee; or
8
(e) an employee or contractor of such an agency; or
9
(f) a marine safety inspector;
10
because of an act done or omitted to be done in the exercise of any
11
power conferred on the National Regulator or a marine safety
12
inspector by or under this Law.
13
(2) Criminal or civil proceedings do not lie against a person because of
14
an act done, or omitted to be done, in compliance with a direction
15
given under this Act.
16
(3) Subsection (2) does not apply to the extent to which it is
17
inconsistent with an international agreement to which Australia is a
18
party.
19
(4) To avoid doubt, subsection (2) does not apply to proceedings under
20
section 133.
21
22
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 7 Matters relating to evidence and proceedings, etc.
Section 154
128 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Division 7--Matters relating to evidence and proceedings,
1
etc.
2
154 National Regulator may require certain information
3
(1) This section applies if an offence against this Law (the relevant
4
offence) in relation to a domestic commercial vessel is alleged to
5
have been committed by:
6
(a) the master of the vessel; or
7
(b) the owner of the vessel.
8
(2) The National Regulator may, within 30 days after the conduct
9
constituting the relevant offence, give a written notice:
10
(a) if the relevant offence is alleged to have been committed by
11
the master of the vessel--to the owner of the vessel,
12
requiring the owner to inform the National Regulator of the
13
name and address of the person who was the master of the
14
vessel at the time of the conduct constituting the relevant
15
offence; or
16
(b) if the relevant offence is alleged to have been committed by
17
the owner of the vessel--to the master of the vessel,
18
requiring the master to inform the National Regulator of the
19
name and address of the person who was the owner of the
20
vessel at the time of the conduct constituting the relevant
21
offence.
22
(3) The notice must:
23
(a) specify the relevant offence; and
24
(b) state the effect of section 155.
25
155 Offence not to give information
26
(1) A person commits an offence if:
27
(a) the person is given a notice under section 154(2); and
28
(b) the person does not, within 28 days of the giving of the
29
notice, give the information specified in the notice to the
30
National Regulator.
31
Penalty: 60 penalty units.
32
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Matters relating to evidence and proceedings, etc. Division 7
Section 156
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
129
(2) Subsection (1) does not apply if the person satisfies the National
1
Regulator that, at the time of the conduct constituting the relevant
2
offence, the vessel had been stolen or wrongfully taken.
3
(3) An offence against subsection (1) is an offence of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
156 Evidentiary certificates
6
(1) The National Regulator may issue a written certificate stating:
7
(a) that a unique identifier was issued, on a specified day, in
8
relation to a domestic commercial vessel; or
9
(b) that a specified certificate in relation to a domestic
10
commercial vessel was issued, suspended or revoked on a
11
specified day; or
12
(c) that a specified person was issued, on a specified day, with a
13
specified certificate in relation to a domestic commercial
14
vessel; or
15
(d) that a specified person was, on a specified day, issued with a
16
certificate of competency; or
17
(e) that a specified certificate of competency was suspended or
18
revoked on a specified day; or
19
(f) the conditions to which a specified certificate is, or is not,
20
subject; or
21
(g) that a specified person was issued with an instrument
22
(however described) of accreditation; or
23
(h) that a specified instrument (however described) of
24
accreditation was suspended or revoked on a specified day.
25
(2) In any proceedings for an offence under this Law, a certificate
26
under this section is prima facie evidence of the matters in the
27
certificate.
28
157 Burden of proving certain matters lies on defendant
29
In proceedings for an offence against this Law, the prosecution is
30
not required to prove, in the absence of evidence to the contrary,
31
the following:
32
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 7 Matters relating to evidence and proceedings, etc.
Section 157
130 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(a) that the defendant was the owner or master of a specified
1
domestic commercial vessel at the time of the conduct
2
constituting the alleged offence;
3
(b) that a specified vessel is a domestic commercial vessel;
4
(c) that a specified vessel of a specified person is subject to this
5
Law;
6
(d) that a specified vessel is not exempt from a provision of this
7
Law;
8
(e) that a message or signal was received by the master of a
9
domestic commercial vessel, if:
10
(i) the message was transmitted under this Law by a
11
prescribed person; and
12
(ii) the vessel was located so as to be able to receive the
13
message or signal;
14
(f) that a specified vessel is a particular length or tonnage;
15
(g) the time of sunrise and sunset in a particular location on any
16
day, as published by the Commonwealth Bureau of
17
Meteorology established under section 5 of the Meteorology
18
Act 1955.
19
20
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Adverse publicity orders Division 8
Section 158
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
131
Division 8--Adverse publicity orders
1
158 Adverse publicity orders
2
(1) This section applies if a court finds a person (the offender) guilty
3
of an offence against this Law, whether or not the court convicts
4
the offender of the offence.
5
(2) The court may make an order (the adverse publicity order)
6
requiring the offender:
7
(a) to take either or both of the following actions within the
8
period specified in the order:
9
(i) to publicise, in the way specified in the order, the
10
offence, its consequences, the penalty imposed and any
11
other related matter;
12
(ii) to notify a specified person or specified class of persons,
13
in the way specified in the order, of the offence, its
14
consequences, the penalty imposed and any other
15
related matter; and
16
(b) to give the National Regulator, within 7 days after the end of
17
the period specified in the order, evidence that the action or
18
actions were taken by the offender in accordance with the
19
order.
20
(3) The court may make the adverse publicity order:
21
(a) either on its own initiative or on the application of the person
22
prosecuting the offence; and
23
(b) in addition to any penalty that may be imposed or any other
24
action that may be taken in relation to the offence.
25
(4) If the offender fails to give evidence to the National Regulator in
26
accordance with subsection (2)(b), the National Regulator may
27
take the action or actions specified in the order.
28
(5)
However,
if:
29
(a) the offender gives evidence to the National Regulator in
30
accordance with subsection (2)(b); and
31
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 8 Adverse publicity orders
Section 158
132 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(b) despite that evidence, the National Regulator is not satisfied
1
that the offender has taken the action or actions specified in
2
the order in accordance with the order;
3
the National Regulator may apply to a court for an order
4
authorising the National Regulator, or a person authorised in
5
writing by the National Regulator, to take the action or actions.
6
(6) If the National Regulator takes one or more actions under
7
subsection (4) or an order under subsection (5), the National
8
Regulator is entitled to recover from the offender, by action in a
9
court, an amount in relation to the reasonable expenses of taking
10
the actions as a debt due to the National Regulator.
11
12
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Regulations and other legislative instruments Division 9
Section 159
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
133
Division 9--Regulations and other legislative instruments
1
159 Regulations
2
(1) The Governor-General may make regulations prescribing matters:
3
(a) required or permitted by this Law to be prescribed; or
4
(b) necessary or convenient to be prescribed for carrying out or
5
giving effect to this Law.
6
(2) The regulations may prescribe standards for the purposes of this
7
Law including, but not limited to, standards in relation to the
8
following:
9
(a) the survey of domestic commercial vessels;
10
(b) the construction of domestic commercial vessels;
11
(c) machinery and equipment connected with domestic
12
commercial vessels;
13
(d) maintenance of domestic commercial vessels;
14
(e) operation of domestic commercial vessels;
15
(f) crewing of domestic commercial vessels;
16
(g) qualifications of crew and masters of domestic commercial
17
vessels;
18
(h) safety of domestic commercial vessels;
19
(i) communications relating to domestic commercial vessels.
20
(3) The regulations may prescribe requirements relating to the
21
following:
22
(a) the keeping of records relating to the operation of domestic
23
commercial vessels;
24
(b) auditing the operation of domestic commercial vessels;
25
(c) the marking of domestic commercial vessels;
26
(d) advertising the uses of domestic commercial vessels,
27
including prohibiting advertising of uses not permitted by a
28
certificate for the vessel.
29
(4) The regulations may prescribe a scheme for and in relation to
30
voluntary enforceable undertakings.
31
(5) The regulations may make provision for and in relation to:
32
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 9 Regulations and other legislative instruments
Section 160
134 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
(a) requiring persons to hold certificates (within the ordinary
1
meaning of that expression) or other documents for the
2
purposes of giving effect to an international convention or
3
instrument that is in force for Australia; and
4
(b) the issuing, varying, revoking and suspending of such
5
certificates or other documents.
6
(6) Before the Governor-General makes regulations for the purposes of
7
section 7(4) or (5), the Commonwealth Minister must be satisfied
8
that:
9
(a) the COAG Council has been consulted in relation to the
10
proposed regulations; and
11
(b) the COAG Council has unanimously agreed to the making of
12
the proposed regulations.
13
160 Regulations may prescribe matters relating to accreditation and
14
approval
15
(1) The regulations may prescribe matters relating to accreditation and
16
approval, including, but not limited to:
17
(a) the accreditation of persons to perform roles prescribed by
18
regulations made for the purposes of this paragraph; and
19
(b) the approval of training organisations.
20
(2) Examples of matters that the regulations may deal with are:
21
(a) the standards that are to be met by persons who seek to be
22
accredited or approved; and
23
(b) who is responsible for determining whether a person meets
24
the standards; and
25
(c) how accreditation is to be recognised (for example, by
26
establishment of a register or other method); and
27
(d) the standards and other obligations that persons must
28
continue to meet to remain accredited or approved; and
29
(e) who is responsible for monitoring compliance with ongoing
30
requirements in the regulations; and
31
(f) the consequences of accredited persons and approved training
32
organisations failing to comply with the provisions of this
33
Law; and
34
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Regulations and other legislative instruments Division 9
Section 161
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
135
(g) the obligations of accredited persons and approved training
1
organisations in relation to the monitoring of their
2
compliance; and
3
(h) how and by whom an accredited person may have his or her
4
accreditation (or recognition of that accreditation) varied,
5
suspended or revoked; and
6
(i) how and by whom an approved training organisation may
7
have its approval varied, suspended or revoked; and
8
(j) review of decisions to refuse, vary, suspend or revoke
9
accreditation (or recognition of accreditation) or approval;
10
and
11
(k) the process for handling complaints involving accredited
12
persons or approved training organisations; and
13
(l) who may deliver recognised training to accredited persons or
14
approved training organisations; and
15
(m) auditing accredited persons or approved training
16
organisations.
17
(3) Before the Governor-General makes the first regulations for the
18
purposes of subsection (1)(a) providing for the accreditation of
19
persons to perform the role of a surveyor of vessels, the
20
Commonwealth Minister must be satisfied that:
21
(a) the COAG Council has been consulted in relation to the
22
proposed regulations; and
23
(b) the COAG Council has agreed to the making of the proposed
24
regulations.
25
161 Offence of contravening a condition of accreditation
26
(1) An accredited person commits an offence if:
27
(a) the person does an act or omits to do an act; and
28
(b) the act or omission contravenes a condition prescribed by the
29
regulations for the purposes of this paragraph; and
30
(c) the act or omission is a risk to the safety of a person or a
31
domestic commercial vessel; and
32
(d) the person intends the act or omission to be a risk to the
33
safety of a person or a domestic commercial vessel.
34
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 9 Regulations and other legislative instruments
Section 161
136 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
Penalty: Imprisonment for 12 months or 200 penalty units, or
1
both.
2
(2) A person commits an offence if:
3
(a) the person does an act or omits to do an act; and
4
(b) the act or omission contravenes a condition prescribed by the
5
regulations for the purposes of this paragraph; and
6
(c) the act or omission is a risk to the safety of a person or a
7
domestic commercial vessel; and
8
(d) the person is reckless as to whether the act or omission is a
9
risk to the safety of a person or a domestic commercial
10
vessel.
11
Penalty: 160 penalty units.
12
(3) A person commits an offence if:
13
(a) the person does an act or omits to do an act; and
14
(b) the act or omission contravenes a condition prescribed by the
15
regulations for the purposes of this paragraph; and
16
(c) the act or omission is a risk to the safety of a person or a
17
domestic commercial vessel; and
18
(d) the person is negligent as to whether the act or omission is a
19
risk to the safety of a person or a domestic commercial
20
vessel.
21
Penalty: 120 penalty units.
22
(4) A person commits an offence if:
23
(a) the person does an act or omits to do an act; and
24
(b) the act or omission contravenes a condition prescribed by the
25
regulations for the purposes of this paragraph.
26
Penalty: 60 penalty units.
27
(5) An offence against subsection (4) is an offence of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Regulations and other legislative instruments Division 9
Section 162
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
137
162 Regulations may prescribe penalties etc.
1
(1) The regulations may prescribe penalties not more than 50 penalty
2
units for offences against the regulations.
3
(2) The regulations may prescribe civil penalties for contraventions of
4
the regulations, not more than:
5
(a) for a body corporate--500 penalty units; or
6
(b) in any other case--100 penalty units.
7
(3) The regulations may provide for a person who is alleged to have
8
contravened a provision of the regulations for whose contravention
9
a civil penalty is prescribed to pay a penalty to the Commonwealth
10
as an alternative to proceedings for a civil penalty.
11
(4) The penalty must not exceed one-tenth of the maximum penalty
12
that a court could have ordered the person to pay if the court was
13
satisfied that the person had contravened that provision.
14
163 Legislative instruments other than regulations
15
(1) The National Regulator may, by legislative instrument, make a
16
Marine Order with respect to any matter for which provision must
17
or may be made by the regulations, other than regulations made for
18
the purposes of the following provisions:
19
(a) sections 7(4) and (5) (definition of domestic commercial
20
vessel);
21
(b) section 8(3)(a) (definition of vessel);
22
(c) section 150(1) (fees);
23
(d) section 160(1)(a) (accreditation).
24
(2) If a Marine Order is inconsistent with this Law, the Marine Order
25
is, to the extent of the inconsistency, of no effect.
26
(3) A reference to this Law in subsection (2) does not include a
27
reference to a Marine Order.
28
Schedule 1 Marine Safety (Domestic Commercial Vessel) National Law
Part 8 General matters
Division 9 Regulations and other legislative instruments
Section 164
138 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. ,
2012
164 Incorporation of material, etc.
1
Despite section 14 of the Legislative Instruments Act 2003 of the
2
Commonwealth, the regulations and Marine Orders may make
3
provision for or in relation to a matter by applying, adopting or
4
incorporating any matter contained in any written instrument in
5
force or existing from time to time, including but not limited to:
6
(a) the National Standard for Commercial Vessels; and
7
(b) the Uniform Shipping Laws Code.
8
165 Regulations may deal with transitional matters
9
(1) The regulations may prescribe matters of a transitional nature
10
(including matters of an application or saving nature):
11
(a) arising out of the enactment of this Law; or
12
(b) relating to the transition from the application of provisions of
13
laws of the States and the Territories to the application of
14
provisions of this Law.
15
(2) The regulations have effect despite anything else in this Law.
16
(3) The regulations may provide that certain provisions of this Law are
17
taken to be modified as set out in the regulations. Those provisions
18
then have effect as if they were so modified.
19
(4) The regulations may provide that a specified identifier, document,
20
licence, certificate or exemption (however described) issued,
21
whether before or after the commencement of this Act, under a law
22
of a State or the Northern Territory is taken to be a specified
23
identifier, document, licence, certificate or exemption issued under
24
this Law, subject to such requirements and modifications as are
25
prescribed.
26
(5) Despite section 12(2) of the Legislative Instruments Act 2003 of
27
the Commonwealth, regulations made under this section may be
28
expressed to take effect from a date before the regulations are
29
registered under that Act.
30
(6)
If:
31
Marine Safety (Domestic Commercial Vessel) National Law Schedule 1
General matters Part 8
Regulations and other legislative instruments Division 9
Section 165
Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 No. , 2012
139
(a) regulations are expressed to take effect from a date before the
1
date the regulations are registered under the Legislative
2
Instruments Act 2003 of the Commonwealth; and
3
(b) a person did an act or omitted to do an act before the
4
regulations are registered; and
5
(c) apart from the retrospective effect of the regulations, the act
6
or omission would not have contravened this Law;
7
then a court must not convict the person of an offence in relation to
8
the act or omission on the grounds that it contravened this Law.
9