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MARINE (AMENDMENT) BILL 2004

                                                                 PARLIAMENT OF VICTORIA

                                                                 Marine (Amendment) Act 2004
                                                                                 Act No.
Victorian Legislation Parliamentary Documents




                                                                      TABLE OF PROVISIONS
                                                Clause                                                                   Page

                                                PART 1--PRELIMINARY                                                         1
                                                  1.     Purposes                                                           1
                                                  2.     Commencement                                                       2

                                                PART 2--AMENDMENT OF THE MARINE ACT 1988                                    3
                                                  3.     Definitions                                                        3
                                                  4.     Insertion of new section 10A                                       6
                                                         10A. Register does not provide evidence of title                   6
                                                  5.     Powers to inspect vessels                                          7
                                                  6.     Boating activities                                                 7
                                                  7.     Omission of certificates of service                                7
                                                  8.     Substitution of sections 26A to 26H                                8
                                                         26A. Requirement to engage harbour master                          8
                                                         26B. Authorisation to act as a harbour master                      9
                                                         26C. Functions of harbour masters                                 11
                                                         26D. Powers of harbour masters                                    12
                                                         26E      Power of harbour masters to give written and oral
                                                                  directions                                               12
                                                         26F.     Specific provisions as to directions relating to the
                                                                  entry and removal of vessels                             14
                                                         26G. General provisions relating to harbour master
                                                                  directions                                               15
                                                         26H. Amendment and revocation of directions                       15
                                                         26HA. Harbour master may carry out direction                      15
                                                         26HB. Offence to fail to comply with direction, or obstruct,
                                                                  harbour master                                           16
                                                         26HC. Identity cards                                              17
                                                         26HD. Issue of harbour master licences                            18
                                                         26HE. Imposition or variation of conditions on harbour master
                                                                  licences                                                 18
                                                         26HF. Requirement as to notification of licence conditions        18
                                                  9.     Amendment to protection from liability provision                  19




                                                                                     i
                                                551137B.I1-5/3/2004                            BILL LA CIRCULATION 5/3/2004

 


 

Clause Page 10. Insertion of new Division in Part 8 19 Division 2--Appointment of Inspectors 19 72. Appointment of inspectors 19 73. Inspector's identity card 20 Victorian Legislation Parliamentary Documents 74. Production of identity card 20 75. Offence to impersonate an inspector 21 Division 2A--Compliance inspections 21 76. Definition 21 77. Powers to enter vessels without consent or warrant 21 11. Definition of inspector for the purposes of investigations under Division 3 of Part 8 22 82. Definition 22 12. Power of Director to conduct investigation into alleged breach of conditions of harbour master licence 22 13. Appeal against imposition of conditions on a licence to VCAT 23 14. Power to prosecute 24 15. Offence to act as a crew member without certificate of competency 24 16. Insertion of new sections 99C to 99F 24 99C. Issue of certificates of competency by the Director 24 99D. Offence not to comply with conditions on certificate of competency 25 99E. Issue of certificates of survey by the Director 25 99F. Offence not to comply with certificate of survey or conditions on certificate of survey 25 17. Service of documents 26 18. Insertion of new regulation making powers 26 19. Insertion of new section 108A 27 108A. Fees for waterway managers 27 20. Insertion of new Part 10 28 PART 10--WATERWAY MANAGERS 28 111. Functions and powers of waterway managers 28 112. Delegation powers of waterway managers 29 21. Insertion of new Division 5 of Part 11 30 Division 5--Transitional Provisions--Marine (Amendment) Act 2004 30 156. Saving of certain certificates of service 30 157. Saving of certain declarations of local authorities 30 158. Saving of harbour master appointments 31 159. Saving of harbour master's directions 31 22. Powers of the Director in Schedule 4 31 ii 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Clause Page 23. Regulation making powers in Schedule 5 32 24. Safety standards for pilotage service providers 32 25. Further amendments to the Marine Act 1988 32 PART 3--AMENDMENT OF THE PORT SERVICES ACT 1995 33 Victorian Legislation Parliamentary Documents 26. Definitions 33 27. Alteration of cross-references 33 28. Repeal of certain sections relating to harbour masters 33 29. Amendment of protection from liability provision 33 91. Protection from liability 33 30. Insertion of new section 184 34 184. Provisions of Subordinate Legislation Act 1994 not to apply to certain ports regulations 34 __________________ SCHEDULE--Further Amendments to the Marine Act 1988 36 ENDNOTES 38 iii 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 2 March 2004 Victorian Legislation Parliamentary Documents A BILL to amend the Marine Act 1988 and the Port Services Act 1995 and for other purposes. Marine (Amendment) Act 2004 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purposes The purposes of this Act are-- (a) to amend the Marine Act 1988 to-- (i) make further provision in relation to the 5 management of certain waterways; and (ii) make further provision in relation to harbour masters; and 1 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 1--Preliminary s. 2 (iii) make further provision for inspection powers, certificates of competency, certificates of survey, and regulation making powers; and Victorian Legislation Parliamentary Documents (iv) make further provision in relation to 5 other matters; and (b) to amend the Port Services Act 1995 to make further provision in relation to the making of statutory rules regulating certain ports and to make various other amendments 10 to that Act. 2. Commencement (1) Section 1, this section and section 30 come into operation on the day after the day on which this Act receives the Royal Assent. 15 (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 February 2005, it 20 comes into operation on that day. __________________ 2 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 3 See: PART 2--AMENDMENT OF THE MARINE ACT 1988 Act No. 52/1988. 3. Definitions Reprint No. 5 as at Victorian Legislation Parliamentary Documents (1) In section 3(1) of the Marine Act 1988-- 7 February 2002 (a) insert the following definitions-- and amending Act Nos ' "certificate of competency" means a 5 77/2001, certificate issued by the Director under 11/2002, 46/2002, section 99C; 85/2002 and 94/2003. "certificate of survey" means a certificate LawToday: issued by the Director under section www.dms. dpc.vic. 99E; 10 gov.au "harbour master licence" means a licence issued by the Director under section 26HD; "local port" has the same meaning as in the Port Services Act 1995; 15 "local port manager" means, in relation to a local port, the person or body appointed under section 44A of the Port Services Act 1995 as the port manager of that port; 20 "member of the police force" has the same meaning as "member of the force" has in the Police Regulation Act 1958; "port corporation" has the same meaning as in the Port Services Act 1995; 25 "port management body" means-- (a) in relation to the port of Melbourne, the Port of Melbourne Corporation; 3 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 3 (b) in relation to-- (i) the waters declared under section 5 of the Port Services Act 1995 to be the Victorian Legislation Parliamentary Documents port of Geelong, the 5 Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel 10 operator; and (ii) the waters declared under section 5 of the Port Services Act 1995 to be the port of Portland, the 15 Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel 20 operator; and (iii) the waters declared under section 5 of the Port Services Act 1995 to be the port of Hastings, the 25 Victorian Regional Channels Authority, or, if there is an agreement with a channel operator in relation to those waters, that channel 30 operator; "port of Melbourne" has the same meaning as in the Port Services Act 1995; "Port of Melbourne Corporation" has the same meaning as in the Port Services 35 Act 1995; 4 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 3 "port of Melbourne waters" has the same meaning as in the Port Services Act 1995; "waterway manager" means-- Victorian Legislation Parliamentary Documents (a) a person or body that has been 5 declared by an Order under sub- section (3)(b) to be a waterway manager; or (b) the Director, in the case of any waters which no other person or 10 body has responsibility for managing.'; (b) for the definition of "harbour master" substitute-- ' "harbour master" includes any person 15 authorised under section 26B to exercise any of the functions of the harbour master, if the person so authorised is acting in accordance with the authorisation;'; 20 (c) for the definition of "licensed harbour master" substitute-- ' "licensed harbour master" means a person who is the holder of a harbour master licence;'; 25 (d) in the definition of "marine infringement"-- (i) in paragraph (b), for "regulations--" substitute "regulations;"; (ii) after paragraph (b) insert-- "(c) any offence against regulations 30 made under the Port Services Act 1995 in relation to local ports--"; 5 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 4 (e) in the definition of "pilot" omit ", and (where appropriate) includes a pilot exempt master"; (f) in the definition of "vessel"-- Victorian Legislation Parliamentary Documents (i) in paragraph (b), after "water;" insert 5 "and"; (ii) at the end of the definition insert-- "(c) any aeroplane that is designed for and capable of being waterborne, for so long as that aeroplane is 10 waterborne;". (2) For section 3(3)(b) of the Marine Act 1988 substitute-- "(b) declare a person, or a body established or constituted by or under any Act for any 15 public purpose, to be the waterway manager of the State waters specified in the Order; or". (3) After section 3(3) of the Marine Act 1988 insert-- 20 "(3A) The Minster may, by Order published in the Government Gazette, amend, vary or revoke an Order made under sub-section (3)(b).". 4. Insertion of new section 10A After section 10 of the Marine Act 1988 insert-- 25 "10A. Register does not provide evidence of title The register of recreational vessels maintained by the Director under this Part does not provide evidence of title to any recreational vessel.". 30 6 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 5 5. Powers to inspect vessels In section 13(1) of the Marine Act 1988-- (a) for paragraph (a) substitute-- Victorian Legislation Parliamentary Documents "(a) an inspector appointed under section 72 for the purposes of this section;"; 5 (b) for paragraph (d) substitute-- "(d) a person who is authorised in writing by a port management body, a local port manager or a waterway manager for the purposes of this section.". 10 6. Boating activities In section 16 of the Marine Act 1988-- (a) for ", the Director or, with respect to waters under its control, a local authority," substitute 15 "-- (a) the Director in respect of any State waters (including waters in respect of which the Director is not the waterway manager); or 20 (b) any other waterway manager, in respect of waters under its control; or (c) any port management body or local port manager, in respect of waters under its control--"; 25 (b) for "or the regulations" substitute ", the regulations or regulations made under the Port Services Act 1995 that relate to local ports and". 7. Omission of certificates of service 30 In section 26(2)(b) of the Marine Act 1988, omit "or service". 7 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 8. Substitution of sections 26A to 26H For sections 26A to 26H of the Marine Act 1988 substitute-- Victorian Legislation Parliamentary Documents "26A. Requirement to engage harbour master (1) The Port of Melbourne Corporation must 5 ensure that a licensed harbour master is at all times engaged for the port of Melbourne waters. Penalty: 120 penalty units. (2) The Victorian Regional Channels Authority 10 must ensure that a licensed harbour master is at all times engaged for the waters declared under section 5 of the Port Services Act 1995 to be the waters of the port of Geelong. Penalty: 120 penalty units. 15 (3) The Victorian Regional Channels Authority must ensure that a licensed harbour master is at all times engaged for the waters declared under section 5 of the Port Services Act 1995 to be the waters of the port of Portland. 20 Penalty: 120 penalty units. (4) The Victorian Regional Channels Authority must ensure that a licensed harbour master is at all times engaged for the waters declared under section 5 of the Port Services Act 25 1995 to be the waters of the port of Hastings. Penalty: 120 penalty units. (5) A local port manager must ensure that a licensed harbour master is at all times engaged for any part of the waters under the 30 control of that manager in respect of which the Director has determined that a licensed harbour master is required to be engaged. Penalty: 60 penalty units. 8 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (6) A waterway manager must ensure that a licensed harbour master is at all times engaged for any part of the waters under the control of that manager in respect of which Victorian Legislation Parliamentary Documents the Director has determined that a licensed 5 harbour master is required to be engaged. Penalty: 60 penalty units. (7) It is a defence to a charge under this section for the person charged to prove that he, she or it believed, after making reasonable 10 enquiries, that the person engaged as the harbour master was licensed under this Act to act as the harbour master for the waters in respect of which he or she was engaged. 26B. Authorisation to act as a harbour master 15 (1) The Port of Melbourne Corporation may, having first-- (a) consulted the harbour master engaged for the port of Melbourne waters; and (b) obtained the approval in writing of the 20 Director-- authorise, in writing, a person to act as an assistant harbour master for the port of Melbourne waters. (2) The person or body who has engaged a 25 harbour master for the waters that have been declared under section 5 of the Port Services Act 1995 to be part of the-- (a) port of Geelong; or (b) port of Portland; or 30 (c) port of Hastings-- may, having first-- 9 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (d) consulted the harbour master engaged by that body; and (e) obtained the approval in writing of the Director-- Victorian Legislation Parliamentary Documents authorise, in writing, a person to act as an 5 assistant harbour master for the waters that have been so declared to be part of the port. (3) A local port manager may authorise, in writing, a person to act as an assistant harbour master for any waters under the 10 control of the manager in respect of which the manager has engaged a harbour master, if the manager has first-- (a) consulted the harbour master so engaged; and 15 (b) obtained the approval in writing of the Director. (4) A waterway manager may authorise, in writing, a person to act as an assistant harbour master for any waters under the 20 control of the manager in respect of which the manager has engaged a harbour master, if the manager has first-- (a) consulted the harbour master so engaged; and 25 (b) obtained the approval in writing of the Director. (5) An authorisation under this section may be general or may be limited to the exercise of the functions and powers that are specified in 30 the authorisation. (6) A person authorised to act as a harbour master under this section has all the functions and may exercise all the powers that are specified in his or her instrument of 35 10 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 authorisation and, when carrying out any such function or exercising any such power, the person acts as the harbour master. (7) The authorisation of a person under this Victorian Legislation Parliamentary Documents section to carry out a function or exercise a 5 power does not prevent the harbour master from carrying out that function or exercising that power. 26C. Functions of harbour masters (1) The functions of a harbour master are as 10 follows-- (a) to control and direct vessels entering and leaving the waters for which he or she has been engaged, including the time and manner of doing so; 15 (b) to control and direct the navigation and other movement of vessels in those waters; (c) to control and direct the position where and the manner in which any vessel 20 may anchor or be secured in those waters; (d) to control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, 25 fresh water and water ballast in those waters; (e) to control and direct the securing or removal of any vessel in those waters in, from or to any position the harbour 30 master thinks fit; (f) any other functions that are conferred on harbour masters by or under this or any other Act. 11 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (2) A harbour master must carry out his or her functions under sub-section (1) in a manner-- (a) that ensures the safety of persons and Victorian Legislation Parliamentary Documents the safe operation of vessels; and 5 (b) that minimises the effect of vessel operations on the environment. (3) The Director may, at any time, impose a condition on the licence of a harbour master that limits or restricts a function of the 10 harbour master. (4) A harbour master's licence may contain a condition that makes the exercise of his or her functions subject to a direction given from time to time to the harbour master by 15 the Director. 26D. Powers of harbour masters A harbour master has all the powers that are necessary and convenient to enable him or her to carry out the functions given to the 20 harbour master under this or any other Act. 26E Power of harbour masters to give written and oral directions (1) A harbour master may from time to time give written directions for or with respect to 25 vessels entering or within waters for which he or she has been engaged, including all or any of the following matters-- (a) prohibiting entry by any vessel to or requiring the removal of any vessel 30 from the waters for which he or she has been engaged, if the harbour master has reasonable cause to believe that the vessel-- (i) is unseaworthy; or 35 12 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (ii) is in imminent danger of sinking and causing an obstruction to navigation in those waters; or (iii) is in imminent danger of causing Victorian Legislation Parliamentary Documents serious damage to the marine 5 environment or property in those waters; (b) to control and direct the navigation and other movement of vessels in those waters; 10 (c) to control and direct the position where and the manner in which any vessel may anchor or be secured in those waters; (d) to control and direct the time and 15 manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast in those waters; (e) to control and direct the securing or 20 removal of any vessel in those waters in, from or to any position the harbour master thinks fit; (f) any other thing for or with respect to the management of the operation of 25 vessels in those waters. (2) Directions given under sub-section (1) must be published in a manner that makes them readily accessible to users of the port. (3) A harbour master may, if it is reasonable to 30 do so, give an oral direction about any matter on which a written direction can be given under sub-section (1) for or with respect to a vessel entering or within waters for which he or she has been engaged. 35 13 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (4) A harbour master who has given a direction under sub-section (3), must, as soon as possible after giving the direction, make a written copy of the direction and cause the Victorian Legislation Parliamentary Documents copy to be kept at the business office of the 5 person or body who has engaged the harbour master for a period of 6 years from the date of the direction. (5) A harbour master may, as a condition of allowing a vessel to be anchored or secured 10 within any part of the waters for which he or she has been engaged, being waters in which a licensed pilot is required to be engaged, direct that a pilot remain on board the vessel while it is so anchored or secured, whether or 15 not pilotage is compulsory under section 96. 26F. Specific provisions as to directions relating to the entry and removal of vessels (1) A harbour master must not give any direction 20 prohibiting the entry of a vessel to the waters for which he or she has been engaged or requiring the removal of a vessel from those waters under section 26E if the direction would endanger the life of any person on the 25 vessel. (2) A direction given by a harbour master prohibiting the entry of a vessel to the waters for which he or she has been engaged or requiring the removal of a vessel from those 30 waters under section 26E may be revoked by order of the Director. 14 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 26G. General provisions relating to harbour master directions (1) A harbour master must not give any direction under section 26E that would result in a Victorian Legislation Parliamentary Documents contravention of any law relating to the State 5 waters or vessel concerned or that would impede the proper administration of the customs or quarantine services within those waters. (2) If a direction given by a harbour master 10 under section 26E is inconsistent with a direction given by the Director under paragraph 18C of Schedule 4, the direction given by the Director prevails and the harbour master's direction is, to the extent of 15 the inconsistency, of no effect. 26H. Amendment and revocation of directions A direction given by a harbour master under section 26E may be amended or revoked by any harbour master who has been engaged 20 for the waters in respect of which the direction applies. 26HA. Harbour master may carry out direction (1) If-- (a) there is no person on board any vessel 25 to whom a harbour master may give a direction under this Part and there are reasonable grounds for the harbour master to act urgently without giving a direction; or 30 15 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 (b) a direction under this Part or under the regulations is not complied with-- the harbour master may cause the vessel to be dealt with as required by the harbour Victorian Legislation Parliamentary Documents master. 5 (2) For that purpose, the harbour master (or a person authorised by the harbour master for the purposes of this section) may board a vessel and move, secure or otherwise operate the vessel. 10 (3) The person or body which has engaged the harbour master may recover from the master or owner of a vessel referred to in sub- section (1) as a civil debt in any court of competent jurisdiction the reasonable 15 charges and expenses incurred in the exercise of the harbour master's functions under that sub-section. 26HB. Offence to fail to comply with direction, or obstruct, harbour master 20 (1) The master of a vessel must not, without reasonable excuse, refuse or fail to comply with-- (a) any direction given under this Part to the master by a harbour master; or 25 (b) any direction in the regulations. Penalty: 120 penalty units. (2) A person must not, without reasonable excuse, obstruct a harbour master (or a person acting under the direction of a 30 harbour master) exercising any function under this Part. Penalty: 60 penalty units. 16 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 26HC. Identity cards (1) The person or body which has engaged a harbour master must give an identity card to the harbour master. Victorian Legislation Parliamentary Documents (2) An identity card must be in a form approved 5 by the Director and must contain-- (a) a photograph of the person to whom it is issued; and (b) the signature of the person. (3) A harbour master must produce his or her 10 identity card-- (a) before exercising a function under this Part, other than the giving of a direction by radio or other electronic communication device; and 15 (b) if requested to do so, in the course of exercising a function under this Part, other than the giving of a direction by radio or other electronic communication device. 20 Penalty: 5 penalty units. (4) Before a harbour master gives a direction by radio or other electronic communication device to another person, the harbour master must warn the person to whom the direction 25 is given that failure to comply with the direction may constitute an offence under section 26HB(2). (5) A person who has been issued with an identity card must return it to the Director, or 30 the person who issued it, on demand. Penalty: 5 penalty units. 17 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 8 26HD. Issue of harbour master licences The Director may issue a licence to a person that authorises that the person is a person who is capable of performing those functions Victorian Legislation Parliamentary Documents of a harbour master that are specified in the 5 licence in the State waters that are specified in the licence. 26HE. Imposition or variation of conditions on harbour master licences (1) The Director may, after first consulting with 10 the person or body who has engaged a harbour master, impose a condition on the licence of that harbour master at any time during the course of the licence. (2) The Director may, after first consulting with 15 the person or body who engaged a harbour master, vary a condition on the licence of that harbour master that has been imposed under sub-section (1). 26HF. Requirement as to notification of licence 20 conditions (1) The Director must not impose or vary a condition under section 26HE unless the Director has first given written notice to the holder of the licence that he or she intends to 25 do so. (2) The Director must when issuing or renewing a licence on which a condition has been imposed under section 26HE, set out the terms of the condition on the licence.". 30 18 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 9 9. Amendment to protection from liability provision (1) In section 26I(1) of the Marine Act 1988-- (a) for paragraph (a) substitute-- Victorian Legislation Parliamentary Documents "(a) in the exercise of a power or the performance of a function under or in 5 connection with this Part or a direction in the regulations; or"; (b) for paragraph (b) substitute-- "(b) in the reasonable belief that the act or omission was in the exercise of a power 10 or the performance of a function under or in connection with this Part or a direction in the regulations.". (2) For section 26I(2) of the Marine Act 1988 substitute-- 15 "(2) Any liability resulting from an act or omission that would, but for sub-section (1), attach to a harbour master or person exercising the functions of a harbour master, attaches instead to the local port manager or 20 waterway manager by which the harbour master or person is engaged.". 10. Insertion of new Division in Part 8 After section 71 of the Marine Act 1988 insert-- 'Division 2--Appointment of Inspectors 25 72. Appointment of inspectors (1) The Director may, if satisfied that a person has the appropriate qualifications and training, appoint-- (a) an employee of the Department of 30 Infrastructure; or 19 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 10 (b) a person engaged by the Director for such a purpose-- as an inspector for the purposes of this Act. Victorian Legislation Parliamentary Documents (2) An inspector may be appointed under sub- section (1) for the purposes of all or any 5 provisions of this Act or the regulations. (3) The Director may exercise any of the powers of an inspector. 73. Inspector's identity card (1) The Director must issue an identity card to 10 each person appointed as an inspector that identifies the person by name as an inspector and that states the provisions of this Act or the regulations for which the inspector has been appointed. 15 (2) The identity card must contain-- (a) a photograph of the person to whom it is issued; and (b) the signature of the person. (3) If a person's authorisation as an inspector is 20 revoked or expires, he or she must immediately return his or her identity card to the Director. Penalty: 5 penalty units. 74. Production of identity card 25 (1) An inspector must produce his or her identity card for inspection-- (a) before exercising a power under this Act; and (b) at any time during the exercise of a 30 power under this Act, if asked to do so. Penalty: 5 penalty units. 20 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 10 (2) Sub-section (1) does not apply if an inspector is exercising-- (a) a power by telephone, radio or other electronic communication device; or Victorian Legislation Parliamentary Documents (b) a power to board a vessel in 5 circumstances in which it is not practicable to produce his or her identity card for inspection. 75. Offence to impersonate an inspector A person who is not an inspector must not, in 10 any way, hold himself or herself out to be an inspector. Penalty: 60 penalty units. Division 2A--Compliance inspections 76. Definition 15 In this Division, "inspector" means an inspector appointed under Division 2 for the purposes of this Division. 77. Powers to enter vessels without consent or warrant 20 (1) An inspector or a member of the police force, in order to determine whether or not-- (a) in the case of a vessel for which a certificate of survey has been issued, the certificate is being complied with; 25 or (b) in the case of a vessel for which a certificate of survey has not been issued, any provisions of this Act or the regulations as to-- 30 (i) the design of the vessel; or (ii) the construction of the vessel; or 21 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 11 (iii) the equipment that the vessel is required to be equipped with; or (iv) the operation of the vessel-- Victorian Legislation Parliamentary Documents are being complied with-- may, at any reasonable time, do the 5 following-- (c) enter and search the vessel; (d) inspect any equipment or document found on the vessel. (2) A person who is exercising a power under 10 sub-section (1) may do so with the assistance of another inspector or a member of the police force.'. 11. Definition of inspector for the purposes of investigations under Division 3 of Part 8 15 For sections 82 to 82C of the Marine Act 1988 substitute-- '82. Definition In this Division, "inspector" means an inspector appointed under Division 2 for the 20 purposes of this Division.'. 12. Power of Director to conduct investigation into alleged breach of conditions of harbour master licence (1) In section 84(1) of the Marine Act 1988-- 25 (a) in paragraph (b), for "regulations." substitute "regulations; or"; (b) after paragraph (b) insert-- "(c) that the holder of any harbour master licence has breached the conditions of 30 that licence; or 22 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 13 (d) that any pilot, pilot exempt master or pilotage service provider, who is registered under this Act to act as a pilot, pilot exempt master or pilotage Victorian Legislation Parliamentary Documents service provider (as the case requires), 5 has breached the conditions of that registration.". (2) In section 84(2) of the Marine Act 1988, after "the regulations" insert "or a condition of a licence granted under this Act". 10 13. Appeal against imposition of conditions on a licence to VCAT After section 85(3A) of the Marine Act 1988 insert-- "(3B) If the Director has imposed a condition on a 15 harbour master licence under section 26HE(1), the holder of the licence may apply to the Victorian Civil and Administrative Tribunal for a review of the decision of the Director. 20 (3C) An application for review of a decision of the Director under sub-section (3B) must be made within 28 days of the later of-- (a) the day on which the decision was made; or 25 (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given 30 to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.". 23 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 14 14. Power to prosecute In section 87(1) of the Marine Act 1988, for "or the regulations" substitute ", the regulations or regulations made under the Port Services Act Victorian Legislation Parliamentary Documents 1995 that relate to local ports". 5 15. Offence to act as a crew member without certificate of competency In section 94(1) of the Marine Act 1988, for "for which a certificate is required under the regulations unless he or she holds an appropriate 10 certificate" substitute "for which a certificate of competency is required under the regulations unless that person holds a certificate of competency that authorises that person to act in that capacity". 15 16. Insertion of new sections 99C to 99F After section 99B of the Marine Act 1988 insert-- "99C. Issue of certificates of competency by the Director 20 (1) The Director may issue a certificate to a person that authorises that person to act as a master or a crew member on vessels that are of the class of vessel set out on the certificate and in the capacity on any such vessel that is 25 set out in the certificate. (2) The Director may impose conditions on any certificate of competency. 24 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 16 99D. Offence not to comply with conditions on certificate of competency The holder of a certificate of competency must comply with any condition imposed on Victorian Legislation Parliamentary Documents the certificate by the Director under section 5 99C(2). Penalty: 10 penalty units. 99E. Issue of certificates of survey by the Director (1) The Director may issue a certificate to the 10 owner of a vessel that sets out requirements as to all or any of the following-- (a) the design of the vessel; (b) the construction of the vessel; (c) the equipment that the vessel is 15 required to be equipped with; (d) the operation of the vessel. (2) The Director may impose conditions on any certificate of survey. 99F. Offence not to comply with certificate of 20 survey or conditions on certificate of survey (1) The owner of a vessel must ensure that all the requirements of the certificate of survey are complied with. 25 Penalty: 10 penalty units. (2) The owner of a vessel must ensure that-- (a) any condition imposed by the Director under section 99E(2) on a certificate of survey issued for the vessel is complied 30 with; or 25 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 17 (b) any condition prescribed by the regulations that applies to a certificate of survey is complied with. Penalty: 10 penalty units. Victorian Legislation Parliamentary Documents (3) Any person who operates a vessel in respect 5 of which a certificate of survey has been issued must ensure that the certificate of survey is complied with. Penalty: 5 penalty units.". 17. Service of documents 10 In section 101(1), section 101(2) and section 101(3) of the Marine Act 1988, for "or the regulations" substitute ", the regulations or regulations made under the Port Services Act 1995 that relate to local ports". 15 18. Insertion of new regulation making powers After section 105(1) of the Marine Act 1988 insert-- "(1A) The Governor in Council may make regulations for or with respect to any waters 20 in respect of which a person has been engaged as a harbour master, including regulations as to the entry, departure or movement of any vessels in such waters, or all or any of the following matters-- 25 (a) the entering or leaving of those waters by any vessels; (b) the movement and navigation of any vessels in those waters; (c) the securing and anchorage of any 30 vessels in those waters; 26 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 19 (d) the taking into any vessel or discharging from any vessel of cargo, stores, fuel, fresh water or water ballast in those waters; Victorian Legislation Parliamentary Documents (e) the removing of any vessels in those 5 waters; (f) any other thing for or with respect to the management of the operation of any vessels in those waters.". 19. Insertion of new section 108A 10 After section 108 of the Marine Act 1988 insert-- "108A. Fees for waterway managers (1) The Governor in Council may make regulations for or with respect to the fees that 15 may be charged by waterway managers for services provided by waterway managers. (2) Regulations made under sub-section (1) may provide for all or any of the following matters-- 20 (a) amounts of fees; (b) fixing fees by reference to a maximum or minimum fee or both; (c) the persons who are to be liable to pay the fees; 25 (d) exemptions from the requirement to pay fees; (e) requirements as to notices to be given by waterway managers as to the fees. (3) Section 108 does not apply to regulations 30 made under this section.". 27 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 20 20. Insertion of new Part 10 After Part 9 of the Marine Act 1988 insert-- "PART 10--WATERWAY MANAGERS Victorian Legislation Parliamentary Documents 111. Functions and powers of waterway managers 5 (1) A waterway manager has the following functions-- (a) the management of vessel activities on the waters under the control of the waterway manager; 10 (b) the management and allocation of moorings and berths in the waters under the control of the waterway manager; (c) the provision and maintenance, in accordance with standards developed 15 by the Director, of navigation aids, including appropriate signage as to water levels, hazards and laws applying to the waters under the control of the waterway manager; 20 (d) the control of navigation and vessel movement in the waters under the control of the waterway manager; (e) the designation of areas in the waters under the control of the waterway 25 manager in which anchorage of vessels is permitted and areas in which anchorage of vessels is not permitted; (f) the altering or dredging of channels for navigation in the waters under the 30 control of the waterway manager, in accordance with any directions of the Director and as so required by the Director; 28 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 20 (g) the removal or marking of obstructions in the waters under the control of the waterway manager. (2) A waterway manager must carry out its Victorian Legislation Parliamentary Documents functions under sub-section (1) in a manner 5 that-- (a) ensures the safe operation of vessels in the waters under the control of the waterway manager; and (b) minimises the risk of environmental 10 damage from the operation of vessels in the waters under the control of the waterway manager. (3) A waterway manager has the following powers-- 15 (a) the power to enter into contracts and agreements for the carrying out of its functions under this section; (b) the power to employ persons or enter into contracts or agency agreements 20 with persons to assist in the carrying out of its functions; (c) the powers to charge the fees prescribed by the regulations for any service provided by the waterway manager; 25 (d) the power to do all things necessary to enable its functions under this section to be carried out. 112. Delegation powers of waterway managers A waterway manager may delegate, by 30 instrument, to any person employed by the waterway manager under section 111(3) any function or power conferred on the waterway manager by or under this Act, other than this power of delegation.". 35 29 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 21 21. Insertion of new Division 5 of Part 11 After Division 4 of Part 11 of the Marine Act 1988 insert-- Victorian Legislation Parliamentary Documents 'Division 5--Transitional Provisions--Marine (Amendment) Act 2004 5 156. Saving of certain certificates of service A person who was, immediately before the commencement of section 22(1) of the Marine (Amendment) Act 2004 the holder of a certificate of service (within the 10 meaning of this Act, and as in force immediately before that commencement) is deemed to continue to be, on and from that commencement, the holder of such a certificate, and Schedule 4 to this Act, as it 15 applied to any such certificates, immediately before that commencement, is deemed to continue to so apply to such a certificate. 157. Saving of certain declarations of local authorities 20 Despite the commencement of section 20 of the Marine (Amendment) Act 2004, a person or body that was, immediately before that commencement a local authority within the meaning of paragraph (b) of the 25 definition of "local authority" (as in force immediately before that commencement) by virtue of a declaration made under section 3(3)(b), as so in force-- (a) is deemed to be, on and from that 30 commencement, a waterway manager for the waters in respect of which that person or body had been declared to be a local authority; and 30 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 22 (b) any reference in the declaration made under section 3(3)(b) to the person or body as a local authority is to be construed as a reference to the person Victorian Legislation Parliamentary Documents or body as a waterway manager and the 5 declaration may be amended or revoked accordingly. 158. Saving of harbour master appointments A person who was, immediately before the commencement of section 8 of the Marine 10 (Amendment) Act 2004-- (a) a harbour master engaged under this Act as in force immediately before that commencement, continues on and from that commencement, to be so engaged; 15 or (b) authorised to act as a harbour master under this Act, as in force immediately before that commencement, is deemed, on and from that commencement, to be 20 so authorised, as if the authorisation had been made under section 26B of this Act. 159. Saving of harbour master's directions A direction made by a harbour master under 25 this Act and in force immediately before the commencement of section 8 of the Marine (Amendment) Act 2004, continues in force, on and from that commencement, as if it were made under Part 3A.'. 30 22. Powers of the Director in Schedule 4 (1) In Schedule 4 to the Marine Act 1988-- (a) omit "CERTIFICATES OF SERVICE"; (b) omit items 4 to 6. 31 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 2--Amendment of the Marine Act 1988 s. 23 (2) In item 8A of Schedule 4 to the Marine Act 1988, after "harbour masters" insert "and to amend, vary or revoke licences of harbour masters". 23. Regulation making powers in Schedule 5 Victorian Legislation Parliamentary Documents (1) In Schedule 5 to the Marine Act 1988-- 5 (a) omit "CERTIFICATES OF SERVICE"; (b) omit items 9 to 16; (c) in item 26, omit "and service". (2) In item 59 of Schedule 5 to the Marine Act 1988, after "the circumstances in which they may be 10 issued" insert ", the information that is to be contained on them". (3) After item 108 in Schedule 5 to the Marine Act 1988 insert-- 15 "109. Licences, certificates, registrations, permits or authorisations granted, issued or made by the Commonwealth or other States or a Territory of the Commonwealth that may be recognised as being the equivalent of licences, certificates, registrations, 20 permits or authorisations granted, issued or made under this Act or the regulations.". 24. Safety standards for pilotage service providers (1) At the end of the definition of "navigation position" in Schedule 6 to the Marine Act 1988, for "navigated." substitute "navigated;". 25 (2) After the definition of "navigation position" in Schedule 6 to the Marine Act 1988 insert-- ' "pilot" includes pilot exempt master.'. 25. Further amendments to the Marine Act 1988 The Marine Act 1988 is amended as set out in the 30 Schedule. __________________ 32 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 3--Amendment of the Port Services Act 1995 s. 26 See: PART 3--AMENDMENT OF THE PORT SERVICES ACT 1995 Act No. 82/1995. 26. Definitions Reprint No. 3 as at Victorian Legislation Parliamentary Documents In section 3 of the Port Services Act 1995, for the 1 July 2003 and definition of "harbour master" substitute-- amending Act Nos ' "harbour master" has the same meaning as in 5 23/2003, the Marine Act 1988;'. 85/2003 and 94/2003. LawToday: 27. Alteration of cross-references www.dms. dpc.vic. In section 44G(2) of the Port Services Act 1995, gov.au for "Sections 26D, 26E, 26F, 26G and 26I" substitute "Sections 26E, 26F, 26G, 26H, 26HA, 10 26HB, 26HC and 26I". 28. Repeal of certain sections relating to harbour masters Sections 83, 84, 85, 86, 87, 88 and 90 of the Port Services Act 1995 are repealed. 15 29. Amendment of protection from liability provision For section 91 of the Port Services Act 1995 substitute-- '91. Protection from liability (1) A harbour master engaged for the waters of a 20 relevant port, or any other person exercising the functions of a harbour master in relation to the waters of a relevant port, is not personally liable for anything done or omitted to be done in good faith-- 25 (a) in the exercise of a power or the performance of a function under or in connection with Part 3A of the Marine Act 1988 or a direction in regulations made under that Act; or 30 33 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 3--Amendment of the Port Services Act 1995 s. 30 (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with Part 3A of the Victorian Legislation Parliamentary Documents Marine Act 1988 or a direction in 5 regulations made under that Act. (2) Any liability resulting from an act or omission that would, but for sub-section (1), attach to a harbour master or person exercising the functions of harbour master, 10 attaches instead to the person or body by which the harbour master or person exercising the functions of a harbour master is engaged. (3) In this section "waters of a relevant port" 15 means-- (a) the port of Melbourne waters; or (b) the waters declared under section 5 to be the waters of the port of Geelong; or (c) the waters declared under section 5 to 20 be the waters of the port of Portland; or (d) the waters declared under section 5 to be the waters of the port of Hastings.'. 30. Insertion of new section 184 After section 183 of the Port Services Act 1995 25 insert-- '184. Provisions of Subordinate Legislation Act 1994 not to apply to certain ports regulations (1) Part 2 of the Subordinate Legislation Act 30 1994 does not apply to a statutory rule made under this Act-- (a) if the statutory rule is made on or before 1 December 2004; and 34 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Part 3--Amendment of the Port Services Act 1995 s. 30 (b) if the Minister has, before the making of the statutory rule, certified in writing that the statutory rule is the same in substance as the Marine (Designated Victorian Legislation Parliamentary Documents Ports) Regulations 2004. 5 (2) The Minister must ensure that a copy of the certificate under sub-section (1) is given to the Scrutiny of Acts and Regulations Committee as soon as practicable after the statutory rule is made. 10 (3) A copy of the certificate under sub- section (1) must be laid before each House of Parliament at the same time as the statutory rule is so laid under section 15 of the Subordinate Legislation Act 1994. 15 (4) In this section-- "Scrutiny of Acts and Regulations Committee" means the Scrutiny of Acts and Regulations Committee established by the Parliamentary 20 Committees Act 2003; "statutory rule" has the same meaning as in the Subordinate Legislation Act 1994.'. __________________ 25 35 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Sch. SCHEDULE FURTHER AMENDMENTS TO THE MARINE ACT 1988 Victorian Legislation Parliamentary Documents 1. In section 15(1) of the Marine Act 1988-- (a) for "recommendation of the Victorian Regional 5 Channels Authority or a channel operator or local authority" substitute "recommendation of a port management body, local port manager or waterway manager"; (b) in paragraph (a), for "the Victorian Regional Channels 10 Authority or channel operator or local authority" substitute "a port management body, local port manager or waterway manager". 2. In section 66A(1) of the Marine Act 1988, for "the Victorian Regional Channels Authority , a channel operator 15 or a local authority" substitute "a port management body, a local port manager or a waterway manager". 3. In section 66B(1) of the Marine Act 1988-- (a) for "If a local authority, the Victorian Regional Channels Authority or a channel operator" substitute 20 "If a port management body, a local port manager or a waterway manager"; (b) for "the local authority, the Victorian Regional Channels Authority or the channel operator" substitute "the port management body, the local port 25 manager or the waterway manager". 4. In section 69(1)(b) of the Marine Act 1988, for "the Victorian Regional Channels Authority or of a local authority" substitute "a port management body, a local port manager or a waterway manager". 30 5. In section 70(1)(b) of the Marine Act 1988, for "or of a local authority" substitute ", a port management body, a local port manager or a waterway manager". 6. In section 92(1) of the Marine Act 1988, for "a local authority" substitute "a port management body, a local port 35 manager or a waterway manager". 36 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Sch. 7. In section 92A(2) of the Marine Act 1988, for "The Victorian Regional Channels Authority, a channel operator or a local authority" substitute "A port management body, a local port manager or a waterway manager". Victorian Legislation Parliamentary Documents 5 8. In section 93(1) and in section 93(2) of the Marine Act 1988, for "or a local authority" substitute ", a port management body, a local port manager or a waterway manager". 9. In Schedule 4 to the Marine Act 1988-- 10 (a) for item 18A substitute-- "18A. To provide and maintain, in accordance with the standards developed by the Director, navigation aids in State waters for which the Director is the waterway manager."; 15 (b) in item 18B, for "The Victorian Regional Channels Authority or a channel operator or local authority" substitute "Any port management body, local port manager or any waterway manager"; (c) for items 18E and 18F substitute-- 20 "18E. To control navigation and vessel movements in State waters for which the Director is the waterway manager. 18F. To designate anchorage areas in State waters for which the Director is the waterway 25 manager."; (d) in item 18G, for "or local authority" substitute "or any other port management body, local port manager or any waterway manager". 10. In item 22(a) of Schedule 4 to the Marine Act 1988, for 30 "local authorities" substitute "port management bodies, local port managers, waterway managers". 37 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

Marine (Amendment) Act 2004 Act No. Endnotes ENDNOTES Victorian Legislation Parliamentary Documents By Authority. Government Printer for the State of Victoria. 38 551137B.I1-5/3/2004 BILL LA CIRCULATION 5/3/2004

 


 

 


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