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This is a Bill, not an Act. For current law, see the Acts databases.
Ports and Marine Legislation Amendment Act 2017
No. of 2017
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 3
3 Principal Act 3
Part 2--Amendment of Marine Safety Act 2010 4
4 Definitions 4
5 New section 4A substituted 4
6 Heading to Part 2.2 4
7 Duties of local port managers to ensure safety of marine safety
infrastructure operations 4
8 New Part 2.2B inserted 5
9 Duties of suppliers of marine safety infrastructure operations to
local port managers 7
10 Duties of pilotage service providers to owners of vessels 7
11 Licence endorsement 8
12 Dangerous operation of a recreational vessel or hire and drive
vessel 9
13 Power of court to cancel or suspend marine licences 9
14 Making of waterway rules 9
15 Repeal of section 186 10
16 Publication of notice of assessment of urgent safety rule 10
17 Publication of notice of request or proposal to make a rule 10
18 Publication of notice of proposal to request the making of a rule 11
19 Publication of declaration made under section 203(3) 11
20 Activity exclusion zones 11
21 New Division 1 of Part 5.5 inserted 11
22 New Division 2 of Part 5.5 inserted 12
23 Offence not to use a pilot 16
24 Application for pilot licence 17
25 Grant of pilot licence 17
26 New section 252A inserted 17
27 Section 285 substituted 17
28 New Part 8.8A inserted 19
29 Section 306 repealed 30
30 General regulation-making powers 30
i
Clause Page
31 Ongoing fees for permission 31
32 Definitions 31
33 Statute law revision 31
Part 3--Amendment of Marine (Drug, Alcohol and Pollution
Control) Act 1988 32
34 Breath analysis 32
35 Taking of blood samples by approved health professionals 32
36 Blood and urine samples 33
37 Oral fluid testing and analysis 33
38 Evidentiary provisions--blood tests 33
39 Breath analysing instruments 33
40 Avoidance of certain provisions in contracts of insurance 33
41 Removal of pollution 33
42 Liability of officers of bodies corporate 34
Part 4--Amendment of Port Management Act 1995 36
43 New section 88AP inserted 36
44 New section 88Q substituted 37
45 Powers when moving things 38
46 Requirement to make enquiries as to owner of thing 38
47 Disposal of thing 38
48 Recovery of costs 39
49 Payment of compensation 40
50 Proceeds of disposal where owner not located 40
51 Power to prosecute 40
Part 5--Amendment of Road Safety Act 1986 41
52 Authorised use or disclosure 41
Part 6--Repeal of amending Act 42
53 Repeal of amending Act 42
═══════════════
Endnotes 43
1 General information 43
ii
Ports and Marine Legislation
Amendment Act 2017
No. of 2017
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Marine Safety Act 2010--
(i) to apply safety duties to local port
managers and to persons who manage
boating activity events; and
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Part 1--Preliminary
(ii) to extend the safety duties that apply to
pilotage service providers; and
(iii) to remove the ability of children
between the ages of 12 and 16 to apply
for a personal watercraft endorsement
on their marine licence; and
(iv) to make the dangerous operation of a
vessel offence apply in circumstances
where the vessel is at anchor or made
fast to the shore; and
(v) to permit waterway managers to
relocate, seize and dispose of things
abandoned on waterways under the
waterway manager's control and
recover all associated costs of
relocating, seizing and disposing
of abandoned things; and
(vi) to provide for the maintenance of the
knowledge, skills and medical fitness
of vessel pilots; and
(vii) to change the way criminal liability of
officers of bodies corporate in respect
of certain specified offences is to be
determined; and
(viii) to provide for new arrangements for
the use and disclosure of information
collected and held by the Safety
Director; and
(ix) to make other amendments to improve
the operation of that Act; and
(b) to amend the Marine (Drug, Alcohol and
Pollution Control) Act 1988--
(i) to permit approved health professionals
to take blood samples; and
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(ii) to make provision for criminal liability
of officers of bodies corporate for
contraventions of certain specific
offences under that Act; and
(iii) to make other amendments to improve
the operation of that Act; and
(c) to amend the Port Management Act 1995--
(i) to permit port managers to relocate,
seize and dispose of things abandoned
at ports and recover all associated costs
under Division 4 of Part 5B of that Act;
and
(ii) to make other amendments to improve
the operation of that Act; and
(d) to amend the Road Safety Act 1986 to make
an amendment to the information disclosure
provisions that is consequential to the new
information disclosure provisions in the
Marine Safety Act 2010.
2 Commencement
(1) Subject to subsection (3), this Act (except section
32) comes into operation on a day or days to be
proclaimed.
(2) Section 32 comes into operation on the day on
which Part 3 of the Medical Treatment Planning
and Decisions Act 2016 comes into operation.
(3) If a provision of this Act (except section 32) does
not come into operation before 30 June 2018, it
comes into operation on that day.
3 Principal Act
In this Act, the Marine Safety Act 2010 is called
the Principal Act.
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Part 2--Amendment of Marine Safety Act 2010
Part 2--Amendment of Marine Safety
Act 2010
4 Definitions
In section 3(1) of the Principal Act--
(a) in the definition of marine safety work--
(i) omit "in respect of a domestic
commercial vessel" (where secondly
and thirdly occurring);
(ii) omit "domestic commercial"
(where first, secondly and thirdly
occurring);
(b) in the definition of operate, before
"means" insert ", except in section 87,".
5 New section 4A substituted
For section 4A of the Principal Act substitute--
"4A Meaning of recreational hire and drive
vessel
For the purposes of this Act, a vessel is a
recreational hire and drive vessel if the
vessel is a hire and drive vessel being used
wholly for recreational purposes.".
6 Heading to Part 2.2
In the heading to Part 2.2 of the Principal Act,
after "bodies" insert "and local port managers".
7 Duties of local port managers to ensure safety of
marine safety infrastructure operations
(1) In the heading to section 24 of the Principal Act,
after "bodies" insert "and local port managers".
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(2) In section 24(1) of the Principal Act--
(a) after "port management body" (where twice
occurring) insert "or local port manager";
(b) after "that body" insert "or manager".
(3) In section 24(2) of the Principal Act, after
"port management body" (wherever occurring)
insert "or local port manager".
8 New Part 2.2B inserted
After Part 2.2A of the Principal Act insert--
"Part 2.2B--Safety duties of
persons who manage boating
activity events
25A Duty of a person who manages a
boating activity event to ensure safety of
participants and other affected persons
(1) A duty holder who manages a boating
activity event must, so far as is reasonably
practicable, ensure the safety of participants
in the boating activity event or persons
affected by the boating activity event.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
(2) An offence against subsection (1) is an
indictable offence.
(3) Without limiting subsection (1), a duty
holder contravenes that subsection if the duty
holder fails to do any of the following--
(a) provide, so far as is reasonably
practicable, participants with
information to enable those participants
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to participate in the boating activity
event safely;
(b) comply, so far as is reasonably
practicable, with accepted safety
standards or manuals that are specific to
the type of boating activity event being
undertaken;
(c) ensure, so far as is reasonably
practicable, that rescue and first aid
capabilities or services are available to
participants in boating activity events.
(4) For the purposes of this section, a duty
holder manages a boating activity event if
that duty holder organises, facilitates or
controls a boating activity event.
(5) In this section--
boating activity event--
(a) means an event on State waters
that directly or indirectly involves
vessel operations; and
Examples
Boat race, open water swimming race,
water sports competition or exhibition,
filming or promotional event, school
kayak excursion.
(b) does not include--
(i) a pyrotechnic display or
show on State waters; or
(ii) groups of people cruising
together in vessels on State
waters in an informal
manner;
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duty holder means an employer or self-
employed person (within the meaning
of the Occupational Health and
Safety Act 2004) but does not
include--
(a) an employee (within the meaning
of that Act) of a duty holder who
manages a boating activity event;
or
(b) a volunteer (within the meaning of
that Act).
Note
This section applies irrespective of whether a duty holder
who manages the boating activity event has applied for or
obtained an exemption or the establishment of an exclusion
zone under Part 5.3.".
9 Duties of suppliers of marine safety infrastructure
operations to local port managers
(1) In the heading to section 28 of the Principal Act,
after "bodies" insert "and local port managers".
(2) In section 28(1) of the Principal Act, after
"port management body" insert "or local port
manager".
10 Duties of pilotage service providers to owners of
vessels
(1) In the heading to section 29 of the Principal Act
omit "domestic commercial".
(2) In section 29(1) of the Principal Act--
(a) omit "domestic commercial";
(b) for "reasonable" substitute "reasonably".
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(3) For section 29(2) of the Principal Act
substitute--
"(2) Without limiting subsection (1), a person
contravenes that subsection if the person
fails to do any of the following--
(a) ensure, so far as is reasonably
practicable, that a pilot provided by the
person to an owner of a vessel is not
impaired by fatigue, alcohol or other
drug;
(b) ensure, so far as is reasonably
practicable, that a pilot provided by the
person to an owner of a vessel to carry
out an activity mentioned in paragraph
(a) or (b) of the definition of marine
safety work--
(i) is medically fit and able to carry
out the activity for which the pilot
has been provided; and
(ii) is qualified and competent to carry
out the activity for which the pilot
has been provided;
(c) provide, so far as is reasonably
practicable, such information,
instruction, training or supervision to a
pilot provided by the person to an
owner of a vessel as is necessary to
enable the pilot to safely carry out an
activity mentioned in paragraph (a) or
(b) of the definition of marine safety
work.".
11 Licence endorsement
In section 55(2) of the Principal Act, after
"a person" insert "aged 16 years or older".
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12 Dangerous operation of a recreational vessel or hire
and drive vessel
(1) In the heading to section 87 of the Principal Act
omit ", government vessel".
(2) In section 87(2A) of the Principal Act, for
"The master of a recreational hire and drive vessel
must not operate the vessel" substitute "A person
must not operate a recreational hire and drive
vessel".
(3) After section 87(5) of the Principal Act insert--
"(6) In this section--
operate means to facilitate or control the
movement or navigation of a vessel
(or a thing connected to a vessel)
including a vessel that is--
(a) at anchor; or
(b) made fast to the shore; or
(c) aground.
(7) For the purposes of this section, a person
does not operate a vessel solely because the
person is in charge of the vessel.".
13 Power of court to cancel or suspend marine licences
In section 171(2) of the Principal Act, after
"section" insert "24,".
14 Making of waterway rules
After section 184(1) of the Principal Act insert--
"(1A) The Safety Director may make a rule--
(a) at the request of a port management
body, local port manager, waterway
manager or police officer under
section 194; or
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(b) on the Safety Director's own
initiative.".
15 Repeal of section 186
Section 186 of the Principal Act is repealed.
16 Publication of notice of assessment of urgent safety
rule
For section 192(2)(a) of the Principal Act
substitute--
"(a) publish notice of the assessment of the
urgent safety rule--
(i) on the Safety Director's Internet site;
and
(ii) in some other way that gives notice
of the assessment to persons who the
Safety Director reasonably believes will
be affected by the urgent safety rule;
and".
17 Publication of notice of request or proposal to make
a rule
For section 195(3)(a) of the Principal Act
substitute--
"(a) publish notice of the request or proposal to
make a rule--
(i) on the Safety Director's Internet site;
and
(ii) in some other way that gives notice of
the request or proposal to persons who
the Safety Director reasonably believes
will be affected by the requested or
proposed rule, if made; and".
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18 Publication of notice of proposal to request the
making of a rule
For section 196(2)(a) of the Principal Act
substitute--
"(a) publish notice of the proposal to request the
making of a rule--
(i) on the body's or manager's Internet site;
and
(ii) in some other way that gives notice of
the proposal to persons who the body or
manager reasonably believes will be
affected by the proposed rule, if made;
and".
19 Publication of declaration made under
section 203(3)
For section 203(6) of the Principal Act
substitute--
"(6) A declaration under subsection (3) must be
published--
(a) on the applicable regulatory entity's
Internet site; and
(b) in some other way that gives notice of
the declaration to persons affected by
the declaration.".
20 Activity exclusion zones
Section 208(4) of the Principal Act is repealed.
21 New Division 1 of Part 5.5 inserted
Before section 216 of the Principal Act insert--
"Division 1--Functions and powers".
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22 New Division 2 of Part 5.5 inserted
After section 219 of the Principal Act insert--
"Division 2--Abandoned or unclaimed
goods or things
219A Removal of things
(1) Subject to subsection (2), a waterway
manager may move any thing or cause any
thing to be moved from waters under the
control of the waterway manager if--
(a) the thing has been left unattended on
those waters for more than one month;
and
(b) the identity or location of the owner of
the thing cannot be established or the
waterway manager reasonably believes
that the owner of the property will not
move the property.
(2) A waterway manager may immediately
remove a thing from waters under the control
of the waterway manager if--
(a) the waterway manager is of the opinion
that the thing has been left unattended
on those waters and--
(i) is causing an impediment to the
use of those waters; or
(ii) is causing an environmental
hazard to those waters; or
(iii) is a risk to the safety or security,
or use, of those waters; or
(iv) is a danger to public health; and
(b) the identity or location of the owner of
the thing cannot be established or the
waterway manager reasonably believes
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that the owner of the property will not
move the property.
219B Powers when moving things
(1) In the case of a vehicle or vessel, a person
acting in accordance with section 219A(1)
or (2) may enter the vehicle or vessel using,
if necessary, reasonable force, for the
purpose of conveniently or expeditiously
moving the vehicle or vessel.
(2) A waterway manager when moving a thing
under section 219A(1) or (2) must move
it to a place that the waterway manager
reasonably believes is the nearest safe and
convenient place.
219C Requirement to make enquiries as to
owner of thing
If a waterway manager has moved a
thing under section 219A(1) or (2), the
waterway manager must make all reasonable
enquiries to establish the identity or location
of the owner of the property.
219D Disposal of thing
(1) If, after reasonable enquiries, a waterway
manager is unable to establish the identity
or location of the owner of a thing that has
been moved under section 219A(1) or (2),
the waterway manager may dispose of the
thing either by gift, sale or destruction of the
thing or by otherwise dealing with the thing.
(2) A waterway manager must not dispose of a
thing under subsection (1) unless--
(a) the waterway manager has given
notice about the disposal of the thing
in a newspaper circulating generally in
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Victoria and on the manager's Internet
site; and
(b) 28 days have expired since the giving
of the notice.
(3) The requirements of subsection (2) do not
apply to the disposal of a thing that is
perishable.
(4) If a waterway manager establishes the
identity or location of the owner of a thing
that has been moved under section 219A(1)
or (2), the waterway manager must give the
owner notice in writing that the waterway
manager intends to dispose of the thing.
(5) If a waterway manager gives notice in
writing under subsection (4) to the owner
and the owner of the thing does not recover
the thing from the waterway manager within
28 days the waterway manager may dispose
of the thing after the 28 days have expired,
either by gift, sale or destruction of the thing
or by otherwise dealing with the thing.
(6) The requirements of subsection (5) do not
apply to the disposal of a thing that is
perishable.
219E Recovery of costs
(1) If a waterway manager has moved a thing
under section 219A(1) or (2), the waterway
manager may recover from the owner--
(a) the costs of the moving of the thing;
and
(b) the costs of storing the thing; and
(c) if the thing has been disposed of, the
costs of the disposal of the thing.
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(2) An amount payable under subsection (1)
may be recovered in any court of competent
jurisdiction as a debt due to the waterway
manager.
(3) If the thing is disposed of, an amount that
may be recovered under subsection (1) is to
be paid out of the proceeds (if any) of the
disposal.
219F Payment of compensation
(1) If the owner of a thing is unable to recover
possession of the thing because the thing has
been disposed of under this Division, the
waterway manager must pay to the owner
and any other person with an interest in the
thing an amount commensurate with the
value of the person's interest in the thing less
any amount payable under section 219E.
(2) An amount payable under subsection (1) is
to be paid out of the proceeds (if any) of the
disposal of the thing.
(3) A person with an interest in a thing that has
been disposed of under this Division may
make an application to the Magistrates' Court
for an order that compensation be paid in
accordance with subsection (2) and the Court
may make either or both of the following
orders, where appropriate--
(a) an order that compensation be paid to
that person commensurate with the
value of the person's interest in the
thing;
(b) an order that the costs incurred by
the waterway manager in moving or
disposing of the thing under this
Division may be retained by the
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waterway manager out of the
proceeds of the sale of the thing.
(4) An application under subsection (3) must
be made within 12 months of the date of the
disposal of the thing.
(5) Section 73(2) of the Personal Property
Securities Act 2009 of the Commonwealth
applies to an interest arising out of the
operation of this Division.
219G Proceeds of disposal where owner not
located
If a thing has been disposed of under
section 219D(1) where neither the identity
nor the location of the owner has been
established--
(a) the waterway manager may recover
the costs of moving and disposal of
the thing from the proceeds of that
disposal; and
(b) if no claim has been made under
section 219F within 12 months of the
disposal of the thing, any proceeds
from the disposal of the thing, after
the recovery of any costs under
paragraph (a), must be paid to the
State.".
23 Offence not to use a pilot
(1) For section 248(2)(c) of the Principal Act
substitute--
"(c) a master of a vessel that is less than
35 metres long.".
(2) Section 248(2)(d) of the Principal Act is repealed.
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24 Application for pilot licence
In section 251(2)(b)(i) of the Principal Act, after
"competencies" insert ", medical fitness".
25 Grant of pilot licence
(1) In section 252(1)(a) of the Principal Act, after
"competencies" insert ", medical fitness".
(2) In section 252(2) of the Principal Act, for
"a condition" substitute "conditions".
(3) After section 252(2) of the Principal Act insert--
"(2A) Conditions imposed by the Safety Director
may include conditions requiring the pilot
to maintain the pilot's competencies and
medical fitness.".
26 New section 252A inserted
After section 252 of the Principal Act insert--
"252A Imposition of conditions relating to pilot
competencies and medical fitness
The Safety Director, by written notice
given to a pilot who holds a pilot licence,
may impose conditions on that pilot licence
which require the pilot to maintain the
pilot's competencies and medical fitness
as specified in the conditions.".
27 Section 285 substituted
For section 285 of the Principal Act substitute--
"285 Criminal liability of officers of bodies
corporate--failure to exercise due
diligence
(1) If a body corporate commits an offence
against a provision specified in subsection
(2), an officer of the body corporate also
commits an offence against the provision if
the officer failed to exercise due diligence to
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prevent the commission of the offence by the
body corporate.
(2) For the purposes of subsection (1) the
following provisions are specified--
(a) section 24(1);
(b) section 26(1);
(c) section 27(1);
(d) section 28(1);
(e) section 29(1);
(f) section 102(1).
(3) In determining whether an officer of a body
corporate failed to exercise due diligence, a
court may have regard to--
(a) what the officer knew, or ought
reasonably to have known, about the
commission of the offence by the body
corporate; and
(b) whether or not the officer was in a
position to influence the body corporate
in relation to the commission of the
offence by the body corporate; and
(c) what steps the officer took, or could
reasonably have taken, to prevent the
commission of the offence by the body
corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available
to the officer, an officer of a body corporate
may rely on a defence that would be
available to the body corporate if it were
charged with the offence with which the
officer is charged and, in doing so, the
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officer bears the same burden of proof that
the body corporate would bear.
(5) An officer of a body corporate may commit
an offence against a provision specified in
subsection (2) whether or not the body
corporate has been prosecuted for, or found
guilty of, an offence against that provision.
(6) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
officer, in relation to a body corporate,
means--
(a) a person who is an officer
(as defined by section 9 of the
Corporations Act) of the body
corporate; or
(b) a person (other than a person
referred to in paragraph (a)), by
whatever name called, who is
concerned in, or takes part in,
the management of the body
corporate.".
28 New Part 8.8A inserted
After Part 8.8 of the Principal Act insert--
"Part 8.8A--Use and disclosure of
information
298A Definitions
In this Part--
authorised representative, in relation to an
individual, means a person who is--
(a) a guardian of the individual; or
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(b) an attorney for the individual
under an enduring power of
attorney; or
(c) an agent for the individual within
the meaning of the Medical
Treatment Act 1988; or
(d) an administrator or a person
responsible within the meaning
of the Guardianship and
Administration Act 1986; or
(e) a parent of an individual, if the
individual is a child; or
(f) otherwise empowered under law
to perform any functions or duties
or exercise powers as an agent of
or in the best interests of the
individual--
except to the extent that acting as
an authorised representative of the
individual is inconsistent with an
order made by a court or tribunal;
consent means express consent or implied
consent;
individual includes a deceased individual;
information protection agreement means an
agreement between a person or body
and the Safety Director in relation to
relevant information that complies with
section 298E(2);
law enforcement agency means--
(a) Victoria Police or the police
force or police service of the
Commonwealth or of any other
State or Territory; or
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(b) any other body or person
responsible for the performance
of functions or activities directed
to--
(i) the prevention, detection,
investigation, prosecution
or punishment of offences
against the laws of Victoria,
the Commonwealth or any
other State or Territory; or
(ii) the enforcement of
infringement penalties
(by whatever name they
are known in the relevant
jurisdiction) issued under
a law of Victoria, the
Commonwealth or any
other State or Territory; or
(iii) the enforcement of the orders
of a court;
(c) a body or person authorised
by a law of Victoria, the
Commonwealth or any other State
or Territory to enforce a warrant;
relevant information means information
that, under section 298B, is information
to which this Part applies;
relevant person means a person who is or
has been a delegate of or employed by
or engaged to provide services for--
(a) the Safety Director; or
(b) any other person or body engaged
to provide services for the Safety
Director.
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298B Information to which this Part applies
(1) This Part applies to information--
(a) that is collected or received by the
Safety Director in relation to the
performance or exercise of the Safety
Director's functions or powers within
this Act; and
(b) that identifies an individual or from
which an individual's identity can be
reasonably ascertained.
(2) For the purposes of subsection (1), the facial
image of an individual is information that
identifies the individual or from which the
individual's identity can be reasonably
ascertained.
298C Authorised use or disclosure
(1) Subject to section 298E, the Safety Director
or a relevant person may disclose or use
relevant information--
(a) in connection with the administration of
this Act or the regulations; or
(b) to provide information of community
interest or benefit; or
(c) for the purpose of research, or the
compilation or analysis of statistics,
conducted in the public interest,
other than for publication in a form
that identifies an individual or from
which an individual's identity can be
reasonably ascertained; or
(d) for the purpose of monitoring
compliance with a relevant
marine safety law or enforcing
the requirements of this Act or
the regulations; or
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(e) if the disclosure or use is to the
National Regulator within the
meaning of the Marine Safety
(Domestic Commercial Vessel)
National Law or any delegate of the
National Regulator, for a purpose
relating to the administration or
enforcement of that law or marine
safety; or
(f) for the purpose of any legal
proceedings arising out of this Act or
the regulations or for the purpose of
any report of such a proceeding; or
(g) at the direction of the Minister; or
(h) in circumstances in which the person
believes on reasonable grounds that the
disclosure is necessary to prevent or
lessen a serious or imminent threat to
the life or health of one or more
persons; or
(i) with the consent of--
(i) the individual to whom the
information relates; or
(ii) the authorised representative of
that individual; or
(j) to a not-for-profit organisation to assist
the organisation--
(i) to locate a missing person; or
(ii) to facilitate the reunion of
members of a family or friends--
for non-commercial, humanitarian
purposes; or
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Part 2--Amendment of Marine Safety Act 2010
(k) for the purposes of one or more of the
following functions and activities when
undertaken by or on behalf of a law
enforcement agency--
(i) the prevention, detection,
investigation, prosecution or
punishment of offences of any
kind;
(ii) the enforcement of laws relating
to the confiscation of the proceeds
of crime;
(iii) the preparation for, or conduct of,
proceedings before any court or
enforcement of the orders of a
court;
(iv) the protection of public revenue;
(v) the enforcement of infringement
penalties (by whatever name
they are known in the relevant
jurisdiction); or
(l) if the disclosure or use is required or
authorised by law.
(2) In addition, but subject to section 298E,
the Roads Corporation may use or disclose
information referred to in subsection (1)(a)
in the course of using or disclosing relevant
information, within the meaning of
section 90I of the Road Safety Act 1986,
in accordance with Part 7B of that Act.
298D Exceptional circumstances
(1) This section applies if the Minister is
satisfied that--
(a) exceptional circumstances exist or
have occurred, whether in or outside
Victoria; and
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Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 2--Amendment of Marine Safety Act 2010
(b) it is appropriate to use or disclose
relevant information in accordance with
this section during or in the aftermath
of those exceptional circumstances.
(2) On being notified that the Minister is
satisfied of the matters referred to in
subsection (1), the Safety Director must
publish a notice on the Safety Director's
Internet site stating that--
(a) the Minister is satisfied as to the
matters referred to in subsection (1);
and
(b) accordingly, the Safety Director or a
relevant person may use or disclose
relevant information for the purpose
of dealing with the exceptional
circumstances.
(3) While a notice under subsection (2) remains
published on the Safety Director's Internet
site, but not later than 12 months after the
date on which the notice is first published,
the Safety Director or a relevant person may
use or disclose relevant information if--
(a) the Safety Director or the relevant
person reasonably believes that the
individual to whom the relevant
information relates may be or may
have been involved in, or affected by,
the exceptional circumstances; and
(b) the use or disclosure is for a permitted
purpose in relation to the exceptional
circumstances; and
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Part 2--Amendment of Marine Safety Act 2010
(c) the disclosure is to an agency or
organisation that--
(i) is, or is likely to be, involved
in managing, or assisting in the
management of, the exceptional
circumstances; or
(ii) is directly involved in providing
government services, medical or
other treatment, health services or
financial or other humanitarian
assistance to individuals involved
in the exceptional circumstances;
and
(d) the disclosure is not to a media
organisation.
(4) For the purposes of this section--
exceptional circumstances are
circumstances which--
(a) endanger, or threaten to endanger,
the life, health or safety of any
individual; or
(b) destroy or damage, or threaten to
destroy or damage, any property,
the environment or part of the
environment;
Examples
Events such as natural disasters, fires,
explosions, accidents, unlawful acts
(whether actual or threatened) and
disruptions to essential services may
constitute exceptional circumstances.
permitted purpose means a purpose that
directly relates to the State's response
to the exceptional circumstances in
respect of which the notice under
subsection (2) has been published,
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Part 2--Amendment of Marine Safety Act 2010
including any of the following
purposes--
(a) identifying individuals who--
(i) are, or may be, injured,
missing or dead as a result
of the exceptional
circumstances; or
(ii) are, or may be, otherwise
involved in the exceptional
circumstances;
(b) assisting individuals involved
in the exceptional circumstances
to obtain services such as
government services, medical or
other treatment, health services or
financial or other humanitarian
assistance;
(c) assisting with law enforcement
in relation to the exceptional
circumstances;
(d) coordination or management of
the exceptional circumstances.
298E Information protection agreements
(1) The Safety Director or a relevant person
must not disclose relevant information to a
person or body under section 298C(1)(c), (j)
or (k), unless the person or body has first
entered into an information protection
agreement with the Safety Director.
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Part 2--Amendment of Marine Safety Act 2010
(2) An information protection agreement must--
(a) specify--
(i) the purpose for which the
information is proposed to be
disclosed to the person or body;
and
(ii) the provision of this Act under
which the Safety Director is
authorised to disclose the
information; and
(iii) the means by which the
information will be provided
by the Safety Director; and
(iv) the means by which the
information will be protected
by the person or body; and
(v) how compliance with the terms of
the agreement will be monitored
and enforced by each party to the
agreement; and
(vi) the auditing arrangements; and
(vii) the procedures for managing any
breach of privacy; and
(b) include an undertaking by the person or
body that the information will be used
or disclosed only for the purpose
specified in the agreement.
(3) An information protection agreement
may include any other requirements,
qualifications or conditions specified by
the Safety Director.
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Part 2--Amendment of Marine Safety Act 2010
(4) Subsection (2) does not apply if--
(a) an information protection agreement is
currently in force between the Safety
Director and the delegator, employer,
contractor or principal of the person or
body who has requested the relevant
information; and
(b) in making the request for the relevant
information, the person or body is
acting within the scope of their actual
or apparent authority under the
delegation, employment, contractual
relationship or agency.
(5) If a person or body requests relevant
information other than for a purpose
specified in subsection (2), the Safety
Director or a relevant person may require
the person or body to first enter into an
information protection agreement with the
Safety Director.
(6) A person or body is not required to enter into
an information protection agreement with the
Safety Director in relation to the use or
disclosure of relevant information if--
(a) the person or body is a relevant person;
and
(b) the relevant information is disclosed to
the person or body in their capacity as a
relevant person.
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Part 2--Amendment of Marine Safety Act 2010
298F Disclosure not mandatory
Nothing in this Part requires the Safety
Director or a relevant person to disclose
relevant information.
Note
The Safety Director or a relevant person is entitled not
to disclose relevant information in the absence of a legal
obligation to disclose it.
298G Freedom of Information Act 1982
(1) A document which contains relevant
information is an exempt document within
the meaning of section 38 of the Freedom of
Information Act 1982.
(2) Subsection (1) does not limit the operation of
section 38 of the Freedom of Information
Act 1982.
298H Offence to use or disclose relevant
information without authorisation
Unless authorised under this Part, the Safety
Director or a relevant person must not--
(a) disclose relevant information; or
(b) use the person's knowledge of relevant
information.
Penalty: 120 penalty units.".
29 Section 306 repealed
Section 306 of the Principal Act is repealed.
30 General regulation-making powers
In section 309(1)(f) of the Principal Act,
after "undertaken for the purposes of" insert
"granting, issuing or maintaining".
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Ports and Marine Legislation Amendment Act 2017
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Part 2--Amendment of Marine Safety Act 2010
31 Ongoing fees for permission
After section 310(1)(a) of the Principal Act
insert--
"(ab) by the Safety Director, annually, for the
holding of a permission; and".
32 Definitions
In section 298A of the Principal Act, in the
definition of authorised representative--
(a) for paragraph (c) substitute--
"(c) a medical treatment decision maker
for the individual within the meaning
of the Medical Treatment Planning
and Decisions Act 2016; or";
(b) in paragraph (d) omit "or person
responsible".
33 Statute law revision
In section 165(3)(b) of the Principal Act,
for "Transport (Compliance and
Miscellaneous) Act 1983" substitute
"Transport (Safety Schemes Compliance
and Enforcement) Act 2014".
31
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 3--Amendment of Marine
(Drug, Alcohol and Pollution Control) Act 1988
Part 3--Amendment of Marine
(Drug, Alcohol and Pollution Control)
Act 1988
34 Breath analysis
Section 31(9B) and (11) of the Marine
(Drug, Alcohol and Pollution Control) Act 1988
are repealed.
35 Taking of blood samples by approved health
professionals
(1) In section 31A(2) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, after "allow"
insert "an approved health professional or".
(2) For section 31A(3) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 substitute--
"(3) Subsection (2) does not apply if, in the
opinion of the doctor first responsible for the
examination or treatment of the person, the
taking of a blood sample from that person
would be prejudicial to that person's proper
care and treatment.".
(3) In section 31A(4) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, for "a doctor"
substitute "an approved health professional or
doctor".
(4) In section 31A(6) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, for "a doctor"
substitute "an approved health professional or
doctor".
(5) In section 31A(7) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "a doctor" substitute "an approved health
professional or doctor";
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No. of 2017
Part 3--Amendment of Marine
(Drug, Alcohol and Pollution Control) Act 1988
(b) for "the doctor" (where twice occurring)
substitute "the approved health professional
or doctor".
36 Blood and urine samples
Section 31AB(3) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 is repealed.
37 Oral fluid testing and analysis
Section 31AE(14) and (19) of the Marine
(Drug, Alcohol and Pollution Control) Act 1988
are repealed.
38 Evidentiary provisions--blood tests
Section 32(8)(b)(iii) of the Marine
(Drug, Alcohol and Pollution Control)
Act 1988 is repealed.
39 Breath analysing instruments
In section 33(5) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, for
'the expressions "Drager Alcotest 7110" and
"3530791"' substitute--
'the expressions--
(a) "Alcotest 7110" and "3530791"; or
(b) "Alcotest 9510 AUS" and "8320869"--'.
40 Avoidance of certain provisions in contracts of
insurance
In section 33A(1) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, for "∙05"
substitute "0∙05".
41 Removal of pollution
Section 38(7) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 is repealed.
33
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 3--Amendment of Marine
(Drug, Alcohol and Pollution Control) Act 1988
42 Liability of officers of bodies corporate
After section 66 of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 insert--
"67 Criminal liability of officers of bodies
corporate--failure to exercise due
diligence
(1) If a body corporate commits an offence
against a provision specified in subsection
(2), an officer of the body corporate also
commits an offence against the provision if
the officer failed to exercise due diligence to
prevent the commission of the offence by the
body corporate.
(2) For the purposes of subsection (1), the
following provisions are specified--
(a) section 39(2);
(b) section 46(1).
(3) In determining whether an officer of a body
corporate failed to exercise due diligence, a
court may have regard to--
(a) what the officer knew, or ought
reasonably to have known, about the
commission of the offence by the body
corporate; and
(b) whether or not the officer was in a
position to influence the body corporate
in relation to the commission of the
offence by the body corporate; and
(c) what steps the officer took, or could
reasonably have taken, to prevent the
commission of the offence by the body
corporate; and
(d) any other relevant matter.
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No. of 2017
Part 3--Amendment of Marine
(Drug, Alcohol and Pollution Control) Act 1988
(4) Without limiting any other defence available
to the officer, an officer of a body corporate
may rely on a defence that would be
available to the body corporate if it were
charged with the offence with which the
officer is charged and, in doing so, the
officer bears the same burden of proof that
the body corporate would bear.
(5) An officer of a body corporate may commit
an offence against a provision specified in
subsection (2) whether or not the body
corporate has been prosecuted for, or found
guilty of, an offence against that provision.
(6) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
officer, in relation to a body corporate,
means--
(a) a person who is an officer
(as defined by section 9 of the
Corporations Act) of the body
corporate; or
(b) a person (other than a person
referred to in paragraph (a)), by
whatever name called, who is
concerned in, or takes part in,
the management of the body
corporate.".
35
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 4--Amendment of Port Management Act 1995
Part 4--Amendment of Port Management
Act 1995
43 New section 88AP inserted
Before section 88P of the Port Management
Act 1995 insert--
"88AP Definitions
In this Division--
relevant port means--
(a) if the port manager is the
Victorian Ports Corporation
(Melbourne)--those parts of
the port comprising port of
Melbourne waters and port of
Melbourne land that is not leased
port of Melbourne land;
(b) if the port manager is the port of
Melbourne operator--those parts
of the port comprising leased port
of Melbourne land;
(c) if the port manager is the
VRCA--a commercial trading
port (other than the port of
Melbourne);
(d) if the port manager is a person or
body appointed under section
44A--the local port in respect of
which that person or body was
appointed under that section.".
36
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 4--Amendment of Port Management Act 1995
44 New section 88Q substituted
For section 88Q of the Port Management
Act 1995 substitute--
"88Q Removal of things
(1) Subject to subsection (2), a port manager
may move any thing or cause any thing to be
moved from a relevant port if--
(a) the thing has been left unattended at the
relevant port for more than one month;
and
(b) the identity or location of the owner of
the thing cannot be established or the
port manager reasonably believes that
the owner of the property will not move
the property.
(2) A port manager may immediately remove a
thing from a port if--
(a) the port manager is of the opinion that
the thing has been left unattended at the
relevant port and--
(i) is causing an impediment to the
operations of the port; or
(ii) is causing an environmental
hazard to the port; or
(iii) is a risk to the safety or security of
the port or port operations; or
(iv) is a danger to public health; and
(b) the identity or location of the owner of
the thing cannot be established or the
port manager reasonably believes that
the owner of the property will not move
the property.".
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Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 4--Amendment of Port Management Act 1995
45 Powers when moving things
In section 88R(2) of the Port Management
Act 1995--
(a) for "The Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "A port manager";
(b) for "Corporation or port of Melbourne
operator" substitute "port manager".
46 Requirement to make enquiries as to owner of thing
In section 88S of the Port Management
Act 1995--
(a) for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" substitute "port manager".
47 Disposal of thing
(1) In section 88T(1) of the Port Management
Act 1995--
(a) for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" substitute "port manager".
(2) In section 88T(2) of the Port Management
Act 1995--
(a) for "The Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "A port manager";
(b) in paragraph (a), for "Corporation or
port of Melbourne operator" substitute
"port manager".
38
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 4--Amendment of Port Management Act 1995
(3) In section 88T(4) of the Port Management
Act 1995--
(a) for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" (where twice occurring) substitute
"port manager";
(c) omit "(as the case requires)".
(4) In section 88T(5) of the Port Management
Act 1995--
(a) for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" (where twice occurring) substitute
"port manager";
(c) omit "(as the case requires)".
48 Recovery of costs
(1) In section 88U(1) of the Port Management
Act 1995--
(a) for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" substitute "port manager".
(2) In section 88U(2) of the Port Management
Act 1995, for "the Corporation or port of
Melbourne operator (as the case requires)"
substitute "the port manager".
39
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 4--Amendment of Port Management Act 1995
49 Payment of compensation
(1) In section 88V(1) of the Port Management
Act 1995, for "the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator"
substitute "a port manager".
(2) In section 88V(3)(b) of the Port Management
Act 1995--
(a) for "the Corporation or port of Melbourne
operator" substitute "a port manager";
(b) for "Corporation or port of Melbourne
operator" substitute "port manager".
50 Proceeds of disposal where owner not located
In section 88W of the Port Management
Act 1995--
(a) in paragraph (a), for "the Victorian Ports
Corporation (Melbourne) or port of
Melbourne operator" substitute "a port
manager";
(b) in paragraph (b)(i), for "the Victorian Ports
Corporation (Melbourne)" substitute "a port
manager (other than the port of Melbourne
operator)".
51 Power to prosecute
(1) In section 97 of the Port Management Act 1995,
for "brought" substitute "commenced".
(2) At the end of section 97 of the Port Management
Act 1995 insert--
"(2) Proceedings for an offence against this Act
or regulations made under this Act may be
commenced by the Secretary.".
40
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 5--Amendment of Road Safety Act 1986
Part 5--Amendment of Road Safety Act 1986
52 Authorised use or disclosure
In section 90K(h) of the Road Safety Act 1986,
for "section 306(2)" substitute "Part 8.8A".
41
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Part 6--Repeal of amending Act
Part 6--Repeal of amending Act
53 Repeal of amending Act
This Act is repealed on 30 June 2019.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
═══════════════
42
Ports and Marine Legislation Amendment Act 2017
No. of 2017
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Marine Safety Act 2010, the Marine (Drug, Alcohol and Pollution
Control) Act 1988, the Port Management Act 1995 and the Road
Safety Act 1986 and for other purposes."
By Authority. Government Printer for the State of Victoria.
43
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