Commonwealth Numbered Regulations - Explanatory Statements

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CONTROL OF NAVAL WATERS REGULATION 2015 (SLI NO 27 OF 2015)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 27, 2015

 

 

Issued by the authority of the Minister for Defence

Control of Naval Waters Act 1918

 

Control of Naval Waters Regulation 2015

Section 4 of the Control of Naval Waters Act 1918 (the Act) provides, in part, that the Governor-General may make regulations not inconsistent with the Act which are necessary or convenient to be prescribed, for the purpose of carrying out or giving effect to the control of naval waters.

 

The Regulation repeals the Control of Naval Waters Regulations 1922 which were due to expire on 1 April 2015 with a modern language replacement.

 

The Regulation makes provision for superintendents to be able to control the passage, anchorage, mooring, manning, cleaning and loitering of vessels in naval waters and the entry onto and construction on foreshores of naval waters by people. It also creates offences for persons failing to comply with these controls and provides certain control mechanisms for practical enforcement of naval water restrictions for example by providing for the search and inspection of vessels within naval waters.

 

The Attorney-General's Department and the Department of the Prime Minister and Cabinet were consulted on the Regulation. A wide stakeholder consultation process was undertaken in 2009 coinciding with a review and proclamation of naval waters in December of that year. A close working relationship between superintendents of naval waters and harbourmasters and Port Authorities is maintained. Informal consultations regarding the regulation of naval waters were made in 2014. Those consultations resulted in a reduction of inconvenience to Eden port users. The Navy is not aware of any resounding issues by stakeholders regarding the Control of Naval Waters Regulations 1922 which this Regulation remakes in modern language.

 

The Regulation commences on the day after registration.

 

The authorising Act contains no conditions that need to be fulfilled before this Regulation could be made.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

General Outline

 

This instrument effects the replacement of the Control of Naval Waters Regulations 1922 with a modernised language reimplementation of the same substance. The regulation is made under the Control of Naval Waters Act 1918.

 

Under that Act naval waters may be declared by the Governor-General in waters that are wholly within 5 nautical miles of a naval establishment, defence installation or waters wholly within 2 nautical miles of defence land. Certain waters were declared to be naval waters on the 14 December 2009 by the Governor-General (F2009L04560).

 

Broadly the instrument provides for the control of the passage, anchorage, mooring, manning, cleaning and loitering of vessels in naval waters and the entry onto and construction on foreshores of naval waters by people. It creates offences for persons failing to comply with these controls and provides certain control mechanisms for practical enforcement of naval water restrictions for example by providing for the search and inspection of vessels within naval waters.

 

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Human rights implications

 

This instrument engages minimally with both the right to freedom of movement (article 12(3) International Covenant on Civil and Political Rights (ICCPR)), and the presumption of innocence (article 14(2) ICCPR).

 

Freedom of movement

 

The instrument provides for the curtailment of freedom of movement within naval waters and on the foreshores of them. The ICCPR provides that it is permissible to interfere with the right to freedom of movement for, amongst other things, national security, public order and public health.

 

Legitimate objective: It is a legitimate interest of the Commonwealth to control the movement of vessels in dedicated naval waters to ensure the safety of the public, Commonwealth and private property, the security of naval vessels and the defence of the Commonwealth. For example the restrictions on explosives and dangerous cargoes are to ensure the safety of not only the personnel engaged in the movement of the explosives or dangerous cargoes but also to protect the general public from the possibility of sympathetic detonation.

 

Reasonable, necessary and proportionate: The instrument provides that prior to restricting the entry into naval waters the superintendent is to be satisfied that public safety, the safety of property or the defence of the Commonwealth requires the restriction. Additionally, a superintendent shall have regard to the purpose the Commonwealth uses those waters for, the time of such use, the risk of injury to persons, the risk of interference with or damage to Commonwealth or other property and the forms of communication and time available for giving a notice of restriction. In short superintendents are to control the naval waters in such a fashion as to have minimal impact on the right to freedom of movement.

The presumption of innocence

 

The presumption of innocence is affected by this instrument as subsections 9(2), 9(6), 11(2), 12(2), 13(2), 13(4), 14(2), 14(4), 15(2), 16(2), 17(2), 18(2), 21(4), 22(4), 24(2), 25(5), 25(7) and 26(2) place a burden of proof on a defendant.  However, that burden is only evidential in accordance with section 13.3 of the Criminal Code. Each of subsections 9(2), 9(6), 11(2), 12(2), 13(2), 13(4), 15(2), 16(2), 18(2), 25(5), 25(7) and 26(2) provide for a defence of reasonable excuse for the relevant conduct (which is the conduct of a vessel's master) and provides for the defendant (who is the master of the vessel) to bear the burden of proof. In each of those cases the relevant conduct will be that of the defendant and therefore it is regarded as not unreasonable in the circumstances for a defendant to carry the burden of proof of a matter that may be solely within the defendant's knowledge.

 

Subsection 14(2) provides for the defendant to carry the burden of proof of the reasonableness of their excuse for entry into or remaining within naval waters, or their foreshore, within 100 metres of an installation without the written permission of the naval superintendent of those waters. The relevant conduct will be that of the defendant and therefore it is regarded as not unreasonable in the circumstances for a defendant to carry the burden of proof of a matter that may be solely within the defendant's knowledge. Subsection 14(4) makes similar provision for a person interfering with an installation.

 

Subsection 21(4) provides for the defendant to carry the burden of proof of the reasonableness their excuse for causing or permitting material to be placed in or nearby (where the material is likely to be washed into) naval waters without the naval superintendent's written permission. It is regarded as not unreasonable in the circumstances for a defendant to carry the burden of proof of a matter that may be solely within the defendant's knowledge.

 

Subsection 22(4) provides for the defendant to carry the burden of proof of the reasonableness of their excuse for causing or permitting a vessel to be cleaned within naval waters without the naval superintendent's written permission. It is regarded as not unreasonable in the circumstances for a defendant to carry the burden of proof of a matter that may be solely within the defendant's knowledge.

 

Subsection 24(2) provides the defendant carries the burden of proof for establishing that: they are a member of the Australian Defence Force, the Australian Federal Police, or a State or Territory police force; and that their conduct which resulted in the discharge of a gun, firearm or air-gun over naval waters was in the course of their duties. It is regarded as not unreasonable in the circumstances for a defendant to carry the burden of proof of these matter's as they may be solely within the knowledge of the defendant.

 

 The Attorney-General's Department has advised that each of these 'strict liability' provisions accord with policy's contained in the Attorney-General Department's A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers regarding the drafting of strict liability offences.

 

Conclusion

 

This instrument is compatible with human rights because to the extent that it affects human rights, those effects are reasonable necessary and proportionate.

 

Regulation Impact Statement

 

The Prime Minister and Cabinet Department's Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required, ID reference 18379 refers.

 

Details of the Control of Naval Waters Regulation 2015

 

Section 1 - Name of Regulation

This section provides for the name of the instrument to be the Control of Naval Waters Regulation 2015.

Section 2 - Commencement

This section provides that the instrument commences the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 - Authority

This section provides that the legislative source of the instrument is the Control of Naval Waters Act 1918.

Section 4 - Schedules

This section provides for the repeal of the instruments specified in the schedule to the instrument which are the Control of Naval Waters Regulations 1922.

Section 5 - Definitions

This section provides a definition for 'Act' when used within the instrument to mean the Control of Naval Waters Act 1918. A note to the section also advises of the use of terms as defined in that Act within the instrument.

Section 6 - Exempt vessels

This section provides that the regulation does not apply to exempt vessels - which are defined in the Control of Naval Waters Act 1918.

Section 7 - Entry into, or onto the foreshore of, naval waters

This section provides that if a superintendent of naval waters is satisfied that public safety, the safety of property or the defence of the Commonwealth requires, notice may be given restricting or prohibiting, either absolutely or conditionally, entry to the naval waters, or part thereof, that the superintendent is responsible for, of vessels or people.

The section also provides that if a superintendent of naval waters is satisfied public safety, the safety of property or the defence of the Commonwealth requires, notice may be given restricting or prohibiting entry to the foreshore of naval waters, or part thereof, that the superintendent is responsible for, of vehicles or people.

The section requires these notices to be given in such manner and at such time and place as is reasonably required for the protection of the public or any person who may reasonably be affected by the Commonwealth's use of those naval waters. The section also requires the superintendent to have regard to the purpose the Commonwealth uses those waters for, the time of such use, the risk of injury to persons, the risk of interference with or damage to Commonwealth or other property and the forms of communication and time available for giving the notice when determining the manner time and place of giving a notice.

The section creates an offence for persons who recklessly disregard the terms of such a notice.

Section 8 - Removal from naval waters or the foreshore of naval waters

This section provides that a superintendent of naval waters may cause the removal of persons in naval waters or on the foreshore of them who have contravened a notice given under this instrument.

Section 9 - Making vessels fast to forts etc.

This section provides that the master of vessel made fast to a fort, Commonwealth mooring, buoy, breakwater, jetty, pile, vessel or exempt vessel in naval waters without the permission of, or not in accordance with the terms of the permission granted by, a Superintendent without a reasonable excuse commits an offence of strict liability. The section also provides that a Superintendent's permission that imposes charges needs the Ministers approval.

Section 10 - Superintendent of naval waters may place moorings in those waters

This section empowers a superintendent of naval waters to place moorings for naval ships, mark buoys and other aids to navigation in naval waters as required for any purpose in connection with naval or military operations.

Section 11 - Vessels not to anchor near Commonwealth moorings

This section creates an offence of strict liability for a master of a vessel which anchors or moors either within 180 metres, or another distance specified by a superintendent of naval waters, of a mooring placed by the superintendent or in such a position as to liable to foul an exempt vessel at such a mooring. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 12 - Vessels not to anchor near navigable channels in naval waters

This section creates an offence of strict liability for the master of a vessel over 10 metres in length to cause or permit the vessel to be anchored or left without a ship-keeper in or near a navigable channel of naval waters. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 13 - Vessels not to be near installations etc.

This section creates two offences of strict liability. The first offence is for the master of a vessel that dredges, loiters or anchors in naval waters within 100 metres of an installation, exempt vessel or any other vessel without the written permission of the superintendent of the naval waters. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

The second offence created by the section is for masters who, without written permission from the superintendent of naval waters, cause or permit a vessel or person under their control to interfere with an installation within naval waters. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 14 - Persons not to be near installations etc.

The section creates an offence of strict liability for persons who, without written permission from the superintendent of naval waters, enter or remain in naval waters or the foreshore thereof within 100 metres of an installation, exempt vessel or other vessel. The Section provides for people who have a reasonable excuse for the relevant conduct to have a defence to the offence. The Section further provides that it is an offence of strict liability to engage in conduct that interferes with an installation in naval waters or on the foreshore of them without the written permission of the superintendent of the naval waters. The Section also provides for people who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 15 - Vessel not to approach installations

This section creates an offence of strict liability for a master of a vessel who causes or permits the vessel to approach in naval waters within 30 metres of an installation, exempt vessel or any other vessel unless the vessel is proceeding on Commonwealth business or the master has the written permission of the superintendent of naval waters. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 16 - Vessels not to impede approaches to installations

This section creates an offence of strict liability for a master of a vessel who causes or permits the vessel to lie, or to be moored or anchored in naval waters in a position that impedes the approach to an installation. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 17 - Moorings not to be laid in naval waters without permission

This section creates an offence of strict liability for laying a mooring in naval waters without the written permission of the superintendent of the naval waters. The section also provides for people who have a reasonable excuse for the relevant conduct to have a defence to the offence. The section further provides that a superintendent may require the owner of a mooring to remove the mooring from naval waters and that should the owner not do so that the superintendent may do so. The section also provides that the owner must pay the superintendent the costs of the removal in those circumstances.

Section 18 - Vessels not to anchor near electric cables in naval waters

This section creates an offence of strict liability for a master of a vessel who causes or permits the vessel to be anchored within 180 metres of a line of electric cable laid down within naval waters and indicated by discernable marks erected on shore. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 19 - Objects hooking moorings etc. to be cleared under directions of superintendent

This section provides that a master of vessel which has hooked or become attached to a Commonwealth mooring, electric cable or moorings of buoys within naval waters must not unhook their vessel. Instead, they must notify the superintendent of the naval waters as soon as practicable and then comply with the superintendents directions for clearing their vessel.

Section 20 - Crew numbers

This section requires that the master of a vessel at anchor in naval waters must if required in writing by the superintendent of those naval waters keep sufficient numbers of personnel available to perform any services required for the safety of that vessel. The section also requires masters of vessels to have at least one person on watch on deck at all times.

Section 21 - Refuse etc. not to be deposited in or near naval waters

This section has six sub-sections. The first provides that a superintendent of naval waters may permit a person or class of persons to place material in naval waters or nearby naval waters in a position where the material is likely to wash into those naval waters. The second provides that the permission may be conditional. The third creates an offence of strict liability for causing or permitting material to be so placed not in accordance with a superintendent's notice. The fourth provides for people who have a reasonable excuse for the relevant conduct to have a defence to the offence. The fifth provides that nothing in the Section affects the operation of any law of a State or Territory. The final sub-section notes that 'material' when used in the section includes ballast, stones, sand, earth, clay, refuse, ashes, timber, carcasses, rubbish, dust, fuel, oil, refuse from a quarry, mine or pit and any other pollutant.

Section 22 - Vessels not to be cleaned without permission

This section provides that a superintendent may permit a vessel to be cleaned, breamed or careened in naval waters. The section further provides that the superintendent may impose conditions on any such permission and that any person who causes or permits a vessel to be cleaned, breamed or careened in naval waters other than in accordance with a superintendent's permission commits an offence of strict liability. The section also provides for persons who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 23 - Speed in naval waters

This section provides that if a superintendent of naval waters is satisfied that public safety, the safety of property or the defence of the Commonwealth requires, directions may be given by notice concerning the speed of vessels in naval waters or any specified part of those naval waters. These directions can be absolute, subject to a superintendent's approval or subject to conditions. The section also provides that these notices are to be given in such manner and at such time and place as is reasonably required for the protection of the public or any person who may reasonably be affected by the Commonwealth's use of those naval waters. The section requires the superintendent to have regard to the purpose the Commonwealth uses those waters for, the time of such use, the risk of injury to persons, the risk of interference with or damage to Commonwealth or other property and the forms of communication and time available for giving the notice when determining the manner time and place of giving a notice. The section also creates an offence for persons who recklessly disregard the terms of such a notice.

Section 24 - Guns not to be discharged

This section creates an offence for persons who recklessly engage in conduct that results in a gun, firearm or airgun being discharged over naval waters from the shore, a boat or vessel. The section also provides that if the person is a member of the Australian Defence Force, the Australian Federal Police or the Police Force of a State or Territory and the conduct leading to a gun, firearm or airgun being discharged over naval waters from the shore, a boat or vessel is in the course of their duties that there is no offence.

Section 25 - Vessels with dangerous cargoes not to enter naval waters without permission

This section provides that a superintendent of naval waters may give conditional permission for a vessel carrying explosives or other dangerous goods to enter naval waters. The section provides that such permission may be varied or cancelled at any time. The section also creates an offence of strict liability for a master of a vessel carrying explosives or other dangerous goods who without reasonable excuse, allows or causes the vessel to enter or stay in naval waters otherwise than in accordance with the superintendent's permission. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence. The section also creates an offence of strict liability for masters of a vessel carrying explosives or other dangerous goods in naval waters causing or permitting anything to be done in relation to the vessel or cargo that is not in accordance with the superintendent's permission. The section also provides for masters who have a reasonable excuse for the relevant conduct to have a defence to the offence.

Section 26 - Vessels carrying dangerous cargos to display signals

The section provides that vessels carrying loading or unloading explosives or other dangerous goods are to: in daylight display a large red flag or burgee; and at night show a red light. A vessel's master who without reasonable excuse does not do so commits an offence.

Section 27 - Construction in, or on the foreshore of, naval waters

This section provides that the Minister may by written notice prohibit the construction of any jetty, wharf, building or structure in or on the foreshore of naval waters. The section also provides that a person who does construct a jetty, wharf, building or structure in or on the foreshore of naval waters contrary to a Minister's notice must remove it. If the person who constructed such a structure does not remove it, the section empowers the superintendent of naval waters to remove it and to be paid the cost of that removal by the person who constructed the structure.

Section 28 - Search and Inspection of vessels in naval waters

This section obliges masters of vessels in naval waters to do all that is possible to assist the superintendent or persons acting on behalf of the superintendent search or inspect the vessel.

Section 29 - Delegation

This section allows a superintendent by instrument in writing to delegate to a officer of the Defence Force holding a rank not below that of Lieutenant Commander, Major or Squadron Leader any or all of the superintendents powers and functions under this regulation.

Schedule 1 - Repeals

Control of Naval Waters Regulations 1922

Item 1 provides for the repeal of the whole of the Control of Naval Waters Regulations 1922.


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