Queensland Numbered Acts Queensland Numbered ActsPart 15, after section 202--
insert--
'(1) This section applies if--
(a) a person is convicted of an offence against--
(i) section 41, 43, 44, 57, 61, 186, 202J or 211; or
(ii) the Transport Operations (Road Use Management) Act 1995, section 79 or 80, 4 or the Criminal Code, section 328A,5 that involved a ship used, being used or apparently about to be used in navigation and the person was the person in control of the ship; and
(b) at the time of the offence--
(i) the person was required under this Act to hold a licence to operate the ship; or
(ii) if the person had not held an authority or licence (however described) from the Commonwealth or another State, the person would have been required to hold a licence to operate the ship; and
(c) the court before which the person is convicted is satisfied the person should, in the interests of marine safety, be disqualified or further disqualified from holding or obtaining a licence.
'(2) On application by the prosecution or on its own initiative, the court may order--
(a) if the person is currently disqualified absolutely from holding a licence--from the time of the conviction, the person is again disqualified absolutely from holding or obtaining a licence; or
(b) if the person is currently disqualified from holding a licence for a stated time--
(i) from the time of the conviction, the person is disqualified absolutely; or
(ii) from a time stated by the court, the person is disqualified for a stated time from holding or obtaining a licence; or
(c) otherwise--from the time of the conviction, the person is disqualified absolutely, or for a time stated by the court, from holding or obtaining a licence.
'(3) A court that makes an order under subsection (2) is a disqualifying court.
'(4) In making an order under subsection (2), the disqualifying court must have regard to--
(a) the nature of the offence; and
(b) the circumstances in which the offence was committed; and
(c) the real or potential danger to other persons operating or aboard ships and the public generally; and
(d) whether during the period of 5 years before the conviction, including any period before the commencement of this section, the person had been convicted of an offence mentioned in subsection (1)(a).
'(5) An order under subsection (2) is in addition to any other penalty the disqualifying court may impose, or other order the disqualifying court may make, under an Act.
'(6) It does not matter that the person for whom an order under subsection (2) is made--
(a) was not present when the disqualifying court made its order; or
(b) was not called on to show cause why the order should not be made.
'(1) A relevant clerk of the disqualifying court must send a copy of an order under section 202A to the chief executive of the department in which this Act is administered.
'(2) The chief executive must send a copy of the order to the person for whom the order was made.
'(1) If, at the time the disqualifying court makes an order under section 202A, the person for whom the order is made holds a licence, the licence, and any subsisting licence, is cancelled from the day the order is made.
'(2) The chief executive of the department must give written notice to the person stating that the person is required to give the chief executive the person's licence, and any subsisting licence, within 7 days after the day the notice is given to the person.
'(3) A person given a notice under subsection (2) must comply with the notice, unless the person has a reasonable excuse.
Maximum penalty--20 penalty units.
'(4) Despite the cancellation of a licence under subsection (1), if the disqualification by the order under section 202A is suspended pending a decision on an appeal, as mentioned in section 204(5), the licence, and any subsisting licence, is revived during the suspension of the disqualification.
'(1) This section applies if a person--
(a) is convicted before a court, by summary proceeding under the Justices Act 1886, of an offence against--
(i) section 41, 43, 44, 57, 61, 186, 202J or 211; or
(ii) the Transport Operations (Road Use Management) Act 1995, section 79, other than section 79(1) or (2D); or
(iii) the Transport Operations (Road Use Management) Act 1995, 80(5A); and
(b) by order of the court (a disqualification order) is disqualified under section 202A from holding or obtaining a licence.
'(2) The court may, if it has received an application in the approved form from the person, make an order that the person be issued with a restricted licence.
'(3) The application may only be made--
(a) at the summary proceeding; and
(b) before the court makes the disqualification order.
'(4) For the application--
(a) the court may hear evidence relating to all matters relevant to the application; and
(b) the applicant and other persons may be called as witnesses; and
(c) if the court requires it, the applicant must submit himself or herself as a witness.
'(5) The order may only be made--
(a) at the summary proceeding; and
(b) in conjunction with the disqualification order.
'(6) If the court grants the application, the court must make an order directing a restricted licence be granted to the applicant during the period of the applicant's disqualification subject to restrictions, as stated in the order, that--
(a) restrict the use, under the restricted licence, of a ship by the applicant to stated circumstances directly connected with the applicant's means of earning his or her livelihood; and
(b) may include, but are not limited to, 1 or more of the following--
(i) the class of ship that may be operated;
(ii) the purpose for which a ship may be operated;
(iii) the times at which, or period during which, a ship may be operated;
(iv) the waters in which a ship may be operated.
'(7) To remove any doubt, it is declared that if the court makes an order under subsection (2), the applicant--
(a) is disqualified from holding or obtaining a licence other than the restricted licence; and
(b) may not operate a ship, for the operation of which a licence is required, during the period of the disqualification unless the applicant applies for and obtains the restricted licence the court orders may be granted.
'(8) An order under subsection (2) may relate only to a restricted licence that is of the same type and class as the licence held by the applicant immediately before the disqualification in relation to which the application is made.
'(1) An application for an order under section 202D for the grant of a restricted licence must not be granted unless the applicant satisfies the court that--
(a) the applicant is a fit and proper person to hold a restricted licence, having regard to the safety of other operators of ships and the public generally; and
(b) a refusal would cause extreme hardship to the applicant, or the applicant's family, by depriving the applicant of his or her means of earning his or her livelihood; and
(c) the disqualification for which the application is made resulted from the applicant's conviction for an offence committed when the applicant held a licence; and
(d) the applicant was the holder of a licence immediately before the disqualification in relation to which the application is made; and
(e) none of the circumstances mentioned in subsection (2) apply to the applicant.
'(2) For subsection (1)(e), the application must not be granted in any of the following circumstances--
(a) if, within 5 years before making the application for the order under section 202D including any period before the commencement of this section, either of the following happened--
(i) the applicant was disqualified from holding or obtaining a licence;
(ii) a licence held by the applicant was suspended or cancelled;
(b) if the applicant was previously convicted--
(i) in Queensland of an offence mentioned in section 202A(1)(a); or
(ii) elsewhere of any offence that, if committed in Queensland, would be an offence mentioned in section 202A(1)(a);
within a period of 5 years before the conviction that results in the disqualification for which the application is made, including any period before the commencement of this section;
(c) if the disqualification for which the application is made resulted from a conviction of the applicant for any of the following--
(i) an offence committed when the applicant was engaged in an activity directly connected with the applicant's means of earning his or her livelihood;
(ii) an offence committed by the applicant operating a ship when not holding a licence the applicant was required to hold;
(iii) an offence committed at a time when the applicant was the holder of a restricted licence;
(d) if--
(i) the disqualification for which the application is made resulted from the applicant's conviction for an offence against the Transport Operations (Road Use Management) Act 1995, section 79(2); and
(ii) the applicant is a person to whom section 79(2D) of that Act would have applied apart from the fact that the person was over the general alcohol limit under that Act.
'(3) For subsection (1)(b), if the applicant is not self-employed, the applicant must produce to the court an affidavit made by the applicant's employer confirming the applicant would be deprived of the applicant's means of earning his or her livelihood if the application is refused.
'(4) In subsection (2)(a), the reference to a disqualification, suspension or cancellation does not include--
(a) a disqualification, suspension or cancellation that was set aside on appeal; or
(b) a disqualification, suspension or cancellation because of the applicant's mental or physical disability.
'A court, in considering an order it proposes to make under section 202A(2) disqualifying a person from holding or obtaining a licence absolutely or for a period, must have regard to any other order it proposes to make under section 202D.
'(1) This section applies if--
(a) an order is made under section 202D; and
(b) the person for whom the order is made makes an application under a regulation for a restricted licence of the type stated in the order.
'(2) The person who, under a regulation, has the power of granting a licence of the type for which the application is made (licensing entity) must grant to the person a restricted licence of the type stated in the order subject to--
(a) the restrictions imposed by the disqualifying court's order made under section 202D; and
(b) other terms, provisions, conditions, limitations or restrictions, consistent with the order, as may be stated on the licence under this Act.
'(1) In the first instance, a restricted licence must be granted for--
(a) if the licence that was cancelled under section 202C(1) included a date for the expiry of the licence--the period remaining until the expiry date; or
(b) otherwise--1 year.
'(2) If a restricted licence is renewed during the period of the cancellation, the restricted licence must be renewed subject to the restrictions stated in the order last made whether under section 202D or 202K.
'(3) A restricted licence remains in force until it expires or is cancelled, suspended or surrendered under this Act.
'(1) A regulation may be made about restricted licences.
'(2) Without limiting subsection (1), a regulation about restricted licences may make provision about authorising the chief executive or the general manager to cancel or suspend a restricted licence even though the restricted licence is ordered to be granted under an order of a disqualifying court.
'A person who is the holder of a restricted licence must not operate a ship unless--
(a) the person operates the ship under the restricted licence; or
(b) a licence is not required by anyone to operate the ship.
Maximum penalty--20 penalty units.
'(1) This section applies if, after a disqualifying court makes an order under section 202D or this section, the circumstances connected with the disqualified person's means of earning his or her livelihood have changed.
'(2) The disqualified person (the applicant) may apply, in the approved form, to a Magistrates Court exercising jurisdiction at the place where the applicant resides for an order to vary restrictions currently applying to the applicant's restricted licence by an order of a court.
'(3) For the application, the following must give evidence relating to all matters relevant to the application and must be liable to cross-examination--
(a) the applicant, if required by the court to submit himself or herself as a witness; and
(b) any other person, if called as a witness.
'(4) At least 28 days before the date of the hearing for the application, the applicant must give written notice about the application, including the time and place at which the application is to be heard, to the chief executive in a way prescribed under a regulation.
'(5) The chief executive is entitled to appear and be heard and to give and produce evidence at the hearing of the application, including for or against the grant of the application.
'(6) Also, the chief executive is entitled to be represented at the hearing.
Note--
The chief executive may be represented by an Australian legal practitioner or government legal officer.
'(7) A court to which an application is made under subsection (2) may, if it considers that the justice of the case requires that it do so and having regard to the restrictions mentioned in section 202D(4), make an order varying the restrictions to which the restricted licence is subject under section 202D or this section.
'(8) If the chief executive is given--
(a) a copy of an order made under this section (a variation order) certified to be a true copy by a relevant clerk of the court that made the order; and
(b) the restricted licence to which the variation order relates;
the licensing entity who dealt with the previous application for the restricted licence under section 202G must vary the restrictions to which the restricted licence is subject so the restrictions accord with those imposed by the court by the variation order.
'(9) Until the licensing entity mentioned in subsection (8) varies the restrictions to which the restricted licence is subject, those restrictions continue to apply to the restricted licence despite any variation order.
'(1) This section applies if a person was disqualified by an order under section 202A(2) from holding or obtaining a licence absolutely or for a period of more than 2 years, whether or not at the time of the order the person held a licence.
'(2) The person may, at any time after the expiration of 2 years from the start of the disqualification period, apply for the disqualification to be removed.
'(3) The application must be made to--
(a) if the disqualification was ordered by the Supreme Court--the Supreme Court; or
(b) if the disqualification was ordered by the District Court--the District Court; or
(c) if the disqualification was not ordered by the Supreme or District Court--
(i) if the person lives in Queensland--the Magistrates Court exercising jurisdiction at the place where the person lives; or
(ii) if the person lives outside Queensland--the Magistrates Court, Central division of the Brisbane Magistrates Courts District.
'(4) At least 28 days before the date of the hearing of the application, the applicant must give written notice about the application, including the time and place at which the application is to be heard, to the chief executive in a way prescribed under a regulation.
'(5) The chief executive is entitled to appear and be heard and to give and produce evidence at the hearing of the application, including for or against the grant of the application.
'(6) Also, the chief executive is entitled to be represented at the hearing.
Note for subsection (6)--
The chief executive may be represented by an Australian legal practitioner or government legal officer.
'(1) This section applies to a hearing by the Supreme Court, the District Court or a Magistrates Court of an application under section 202L(2) for the removal of a disqualified person's disqualification.
'(2) As it considers appropriate, the court may--
(a) by order, remove the disqualification on and from a date stated in the order; or
(b) refuse the application.
'(3) For subsection (2), the court must have regard to the following--
(a) the character of the disqualified person;
(b) the disqualified person's conduct after the order under section 202A(2) was made;
(c) the nature of the offence for which the disqualified person was convicted by the disqualifying court;
(d) other circumstances relating to the disqualification or application.
'(4) If the application is refused, a further application under section 202L(2) must not be considered if made within 1 year after the date of the refusal.
'(5) If an order for the removal of a disqualification is made under subsection (2)(a), the court may order the applicant to pay all or part of the costs of the application.
'(6) A relevant clerk of the court that deals with the application must give the chief executive information about the outcome of the application.'.