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Ports and Marine Legislation
Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Ports and Marine Legislation Amendment Bill 2017 (the Bill) makes a
range of amendments to ports and marine legislation in order to provide for
the improved management of marine safety risks, improved public safety
outcomes, efficient and effective management of State waters and
administrative costs savings where available.
A review of marine court cases and safety incidents occurring over the last
3 years revealed gaps in the safety duties and sanctions applicable in ports
and marine legislation. The Bill introduces amendments to the Marine
Safety Act 2010, Marine (Drug, Alcohol and Pollution Control) Act 1988,
and the Port Management Act 1995 which aim to improve marine safety
by increasing the scope and applicability of safety duties in the sector.
Safety duties, which are already applicable to port management bodies, will
be extended by the Bill to local port managers. This will provide Transport
Safety Victoria (TSV) with the authority it requires to regulate local ports
and ensure that consistent safety standards apply to all Victorian port waters.
The Bill introduces new safety duties for persons who manage boating
activity events, to ensure that managers of events are accountable for
ensuring the safety of those involved in or affected by the event and risk
mitigation. The amendments also extend the existing safety duties of
pilotage service providers so that they apply in all circumstances where
pilotage services are being provided to visiting vessels, rather than merely
to owners of domestic commercial vessels.
In the interests of mitigating safety risks posed and costs incurred by
abandoned vessels and other abandoned things in waterways, the Bill also
clarifies the Safety Director's waterway rule-making powers and provides
powers to local ports and waterway managers to allow for removal, seizure
581145 1 BILL LA INTRODUCTION 7/3/2017
and disposal of abandoned items in specified circumstances. The new
provisions also specify the procedure for the recovery of costs and
distribution of the proceeds of disposal by waterway and local ports
managers where removal and seizure exercises are undertaken.
Further amendments made by the Bill to enhance safety protections in the
ports and marine sector include--
• removing the ability of children between the ages of 12 and 16
to apply for a personal watercraft endorsement on their marine
licence; and
• extending the application of the current dangerous operation of
a vessel offence to circumstances where a vessel is at anchor or
made fast to the shore; and
• extending requirements for the assessment of and maintenance
of knowledge, skills and medical fitness of ship pilots.
The Bill also provides for amendments to procedural and administrative
requirements and restrictions in relevant ports and marine statutes to enhance
the functioning of the legislative schemes, such as--
• adjusting advertising requirements for providing notice of
boating rule changes and other matters, to allow for flexibility
in the choice of notice method used; and
• removing unnecessary limitations on the disclosure of
certain information, such as marine licensing and registration
information, in circumstances where that information is needed
for a range of specified public interest or compliance,
monitoring and enforcement purposes.
Various miscellaneous and technical amendments are also made by the
Bill to the relevant statutes, along with a consequential amendment to
the information disclosure provisions in the Road Safety Act 1986.
These changes relate to a range of matters such as--
• repealing provisions in the Marine (Drug, Alcohol and
Pollution Control) Act 1988 which require giving parts of
blood samples to the person who required the taking of the
sample and the person from whom the sample was taken,
to align procedures with changes to parent roads legislation;
and
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• extending powers to take blood samples where a marine
incident has occurred to approved health professionals as well
as doctors, in order to maintain consistency with parent roads
legislation; and
• making provision for the liability of officers of bodies
corporate for certain offences committed by a body corporate;
and
• amending the definition of recreational hire and drive vessel
to clarify that relevant offences apply regardless of whether the
hirer is the master of the vessel or not; and
• providing for powers to enable courts to cancel marine licences
and disqualify persons from holding marine licences for a
period of time when the person is found guilty of an offence
under section 24 of the Crimes Act 1958 for negligently
causing serious injury.
Together, the amendments in the Bill aim to support and improve safety
and introduce other protections in the ports and marine sector as part of
improving the operation and reducing administrative costs of the current
legislative schemes.
Clause Notes
Part 1--Preliminary
Part 1 provides for preliminary matters, including purposes and
commencement.
Clause 1 sets out the main purposes of the Bill, which are to amend a
range of ports and marine legislation, namely--
the Marine Safety Act 2010 in order to--
• apply safety duties to local port managers and to
persons who manage boating activity events; and
• extend the safety duties that apply to pilotage service
providers; and
• remove the ability of children between the ages
of 12 and 16 to apply for a personal watercraft
endorsement on their marine licence; and
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• make the dangerous operation of a vessel offence apply
in circumstances where the vessel is at anchor or made
fast to the shore; and
• permit waterway managers to relocate, seize and
dispose of things abandoned on waterways under their
control and recover all associated costs of relocating,
seizing and disposing of the abandoned things; and
• provide for the maintenance of the knowledge, skills
and medical fitness of vessel pilots; and
• change the way criminal liability of officers of bodies
corporate in respect of certain specified offences is to be
determined; and
• provide for new arrangements for the use and
disclosure of information collected and held by the
Safety Director; and
• make other amendments to improve the operation of
that Act;
the Marine (Drug, Alcohol and Pollution Control) Act 1988 in
order to--
• permit approved health professionals to take blood
samples; and
• make provision for criminal liability of officers of
bodies corporate for contraventions of certain specific
offences under that Act; and
• make other amendments to improve the operation of
that Act;
the Port Management Act 1995 in order 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
• make other amendments to improve the operation of
that Act;
4
the Road Safety Act 1986 in order to--
• make an amendment to the information disclosure
provisions that is consequential to the new information
disclosure provisions in the Marine Safety Act 2010.
Clause 2 deals with the commencement of the Bill.
Subclause (1) provides that, subject to subclause (3), the
provisions of the Bill (except section 32) come into operation
on a day or days to be proclaimed.
Subclause (2) provides that section 32 comes into operation on
the day on which Part 3 of the Medical Treatment Planning
and Decisions Act 2016 comes into operation.
Subclause (3) provides that, if a provision of the Bill (except
section 32) does not come into operation before 1 March 2018,
that provision will come into operation on that day.
Clause 3 specifies that in the Bill the Marine Safety Act 2010 is called the
Principal Act.
Part 2--Amendment of Marine Safety Act 2010
Part 2 provides for amendments to the Principal Act in order to achieve the
abovementioned purposes.
Clause 4 omits reference to "domestic commercial" vessels in the
definition of marine safety work in section 3(1) of the
Principal Act.
The change to the definition broadens its applicability from
domestic commercial vessels to vessels generally, to ensure
that all marine safety work being conducted in Victoria is
covered by the Principal Act.
Clause 4 also makes a consequential amendment to the
definition of operate in section 3(1) of the Principal Act
as a result of clause 12.
Clause 5 updates the definition of recreational hire and drive vessel in the
Principal Act by substituting section 4A to provide that a vessel
is a recreational hire and drive vessel if the vessel is a hire and
drive vessel being used wholly for recreational purposes.
5
The change to the definition aims to clarify that offences relevant
to recreational hire and drive vessels will apply irrespective of
whether the hirer of the vessel is the master of the vessel or not.
Clause 6 makes a consequential change to the heading to Part 2.2 of the
Principal Act by inserting reference to local port managers.
Clause 7 extends the duty to ensure the safety of marine safety
infrastructure operations to local port managers as well as
port management bodies by inserting references to local port
manager into section 24 of the Principal Act.
This amendment aims to provide a transparent mechanism for
optimising the management of safety risks in local ports.
Clause 8 inserts a new Part 2.2B into the Principal Act.
The new Part 2.2B applies safety duties to persons who manage
boating activity events. It provides for a person who manages a
boating activity event to ensure the safety of participants and
other affected persons.
New section 25A(1) provides that a person 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. Penalties for
failure to comply with the duty are--
• 1800 penalty units for a natural person;
• 9000 penalty units for a body corporate.
New section 25A(2) provides that an offence under
section 25A(1) is an indictable offence.
New section 25A(3) stipulates that a person will be considered
to have contravened section 25A(1) (without limiting the
application of that section) if a person fails to do any of the
following--
• provide participants with the necessary information to
enable those participants to participate in the boating
activity event safely;
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• provide persons (other than participants) at the place
where the boating activity event is taking place, or in
the immediate surrounding area of that place, the
necessary information to ensure the safety of those
persons;
• ensure that rescue services and first aid services are
available to participants.
New section 24A(4) provides that a person will be considered
to manage a boating activity event if that person organises,
facilitates or controls a boating activity event.
New section 25A(5) provides a definition of boating activity
event for the purposes of section 25A. A list of example events
which would be considered boating activity events is included in
the definition for clarity.
The definition also specifies types of events that are excluded
from the definition of boating activity event.
A note is included under section 25A which specifies that the
section will apply regardless of whether a person has applied for
or obtained an exemption, or the establishment of an exclusion
zone, under Part 5.3 of the Principal Act.
Clause 9 amends section 28 of the Principal Act to extend safety duties of
suppliers of marine safety infrastructure operations to local port
managers. Currently, suppliers of marine safety infrastructure
operations only owe safety duties under the Principal Act where
the supply of those operations is to a port management body.
The clause inserts the term "local port managers" as required in
section 28.
This amendment enhances the marine safety framework by
extending accountability of suppliers of marine safety
infrastructure operations where the supply of those operations
is to local port managers and ensures the application of safety
standards across all Victorian ports.
Clause 10 amends section 29 of the Principal Act to extend the safety duties
that apply to pilotage service providers. It does this by omitting
references to domestic commercial vessel in section 29.
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The amendment ensures that the safety duties apply in all
circumstances where pilotage services are being provided to
visiting ships, rather than merely applying to services provided
to owners of domestic commercial vessels.
The most frequent users of pilotage services are the owners of
large vessels involved in international and interstate voyages and
safety duties will now extend to pilotage services provided to
those vessels.
Subclause (2) also makes a statute law revision to section 29(1)
by substituting "reasonably" for "reasonable".
Subclause (3) amends section 29(2) of the Principal Act.
Section 29(2)(a) is substituted with a new paragraph to remove
the reference to "domestic commercial vessel" so that the safety
duty for pilotage service providers will apply to persons who
operate any unsafe vessel.
New paragraphs are inserted after section 29(2)(b) to provide that
a person will contravene their safety duty as a pilotage service
provider in section 29(1) if they--
• fail to provide or maintain systems of marine safety
work that are, so far as is reasonably practicable, safe;
or
• fail to provide, so far as is reasonably practicable, such
information, instruction, training or supervision to
marine safety workers as is necessary to enable those
workers to perform their marine safety work in a way
that is safe.
Clause 11 amends section 55(2) of the Principal Act to remove the ability of
children between the ages of 12 and 16 to apply for a personal
watercraft endorsement on their marine licence.
Clause 11 inserts the phrase "aged 16 years or older" after the
words "a person" in section 55(2) to provide that a specified
person must be aged 16 years or older in order to apply for an
endorsement of a marine licence to enable that person to be the
master of a certain type of vessel.
Clause 12 amends section 87 of the Principal Act regarding the requirement
not to operate a recreational hire and drive vessel dangerously
(at speed or in a manner dangerous to the public).
8
Subclause (1) makes a statute law revision to the heading of
section 87 by removing a reference to "government vessel".
Subclause (2) substitutes the sentence "a person must not operate
a recreational hire and drive vessel" for the sentence "the master
of a recreational hire and drive vessel must not operate the
vessel" in section 87(2A).
This amendment extends the applicability of the offence
in section 87(2A) to all persons operating a vessel irrespective
of whether the person is the master of the vessel or not.
Subclause (3) inserts a new definition of operate in section 87.
New section 87(6) provides that operate means to facilitate
or control the movement or navigation of a vessel (or thing
connected to a vessel) including a vessel that is at anchor,
made fast to the shore or aground.
This insertion extends the applicability of the dangerous
operation of a vessel offence to circumstances where a vessel
is at anchor or made fast to the shore.
Subclause (3) also inserts a new section 87(7) which specifies
that a person does not operate a vessel solely because a person
is in charge of the vessel, for the purposes of section 87.
Clause 13 inserts a reference to an offence under section 24 of the Crimes
Act 1958 into the list of offences in section 171(2) of the
Principal Act. If a person is convicted under an offence in the
list in section 171(2), in connection with the operating of a
vessel, the court must cancel the marine licence and disqualify
that person from obtaining a marine licence for a period of time,
or in the case of a person who does not have a marine licence,
disqualify that person from obtaining a marine licence for a
period of time.
The inclusion of section 24 in section 171 of the Principal Act
will require the court to follow the process in section 171(2)
if a person has been found guilty of negligently causing serious
injury while operating a vessel.
Clause 14 inserts a new subsection (1A) into section 184 of the Principal
Act which confers a power on the Safety Director to make
waterway rules in certain circumstances, namely--
9
• at the request of a port management body, local port
manager, waterway manager or police officer under
section 194; or
• on the Safety Director's own initiative.
Clause 15 repeals section 186 of the Principal Act. Section 186 specified
that waterway rules could be made on request or on the initiative
of the Safety Director in limited circumstances. This power will
now be provided for by the new section 184(1A) of the Principal
Act and removes the constraints on what rules the Safety Director
can make on the Director's own initiative.
Clause 16 substitutes a new paragraph for section 192(2)(a) of the Principal
Act, which changes the ways in which the Safety Director must
publish notice of the assessment of an urgent safety rule,
namely--
• on the Safety Director's Internet site; and
• 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.
Clause 17 substitutes a new paragraph for section 195(3)(a) of the Principal
Act, which changes the ways in which the Safety Director must
publish notice of a request or proposal to make a rule, namely--
• on the Safety Director's Internet site; and
• 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.
Clause 18 substitutes a new paragraph for section 196(2)(a) of the Principal
Act, which changes the ways in which the port management
body, local port manager or waterway manager must publish
notice of a proposal to request the making of a rule, namely--
• on the body's or manager's Internet site; and
• in some other way that gives notice of the proposal to
persons who the body or manager reasonably believes
will be affected by proposed rule, if made.
10
Clause 19 substitutes a new paragraph for section 203(6) of the Principal
Act, which changes the ways in which the applicable regulatory
entity (as defined in section 203(7)) must publish a declaration,
made under section 203(3), to exempt boating activity on certain
waters from the Act or regulations, namely--
• on the applicable regulatory entity's Internet site; and
• in some other way that gives notice of the declaration to
persons affected by the declaration.
Clauses 16 to 19 change advertising requirements which
currently require advertisements for a range of circumstances to
be placed in a newspaper circulating generally throughout the
state. The changes allow for the advertising to take place instead
on the relevant entity's Internet site or in another way which
gives effective notice to the people affected by the thing in
question.
Clause 20 repeals section 208(4) of the Principal Act to remove duplication
with respect to activity exclusion zones and seeking exemptions
under the Act.
Clause 21 inserts a new Division heading in Part 5.5 of the Principal Act.
The insertion of the new Division heading is consequential to the
amendment being made by clause 22.
Clause 22 inserts a new Division 2 in Part 5.5 of the Principal Act dealing
with abandoned and unclaimed things that may obstruct safe
navigation on waters.
New section 219A confers powers on waterways managers
to remove things from waters under their control in certain
circumstances.
New section 219A(1) provides that, subject to section 219A(2), a
waterway manager may move any thing or cause any thing to be
moved from waters under the control of the waterway manager in
certain circumstances, namely if--
• the thing has been left unattended on those waters for
more than one month; and
• 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.
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New section 219A(2) provides that a waterway manager may
immediately remove a thing from waters under the control of the
waterway manager if the waterway manager is of the opinion that
the thing has been left unattended on those waters and--
• is causing an impediment to the use of those waters; or
• is causing an environmental hazard to those waters; or
• is a risk to the safety or security, or use of those waters;
or
• is a danger to public health; and
• 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.
New section 219B confers certain powers on waterways
managers when they are moving things.
New section 219B(1) specifies that, 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.
New section 219B(2) provides that a waterway manager must
move a thing to a place that the waterway manager reasonably
believes is the nearest safe and convenient place when moving
a thing under section 219A(1) or (2).
New section 219C specifies a requirement that a waterway
manager make all reasonable enquiries to establish the identity
or location of the owner of property, if the waterway manager
has moved the property under section 219A(1) or (2).
New section 219D confers powers on waterways managers
relating to the disposal of things moved under section 219A(1)
or (2).
New section 219D(1) specifies that a waterway manager may
dispose of the thing either by gift, sale or destruction of the
thing or by otherwise dealing with the thing, if, after reasonable
enquiries, the identity or location of the owner of the thing has
not been established.
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New section 219D(2) specifies requirements which must be
satisfied before a waterway manager may dispose of a thing
under section 219D(1), namely--
• the waterway manager has given notice about the
disposal of the thing in a newspaper circulating
generally in Victoria and on the manager's Internet
site; and
• 28 days have expired since the giving of the notice in
the newspaper.
New section 219D(3) specifies that the requirements in
section 219D(2) do not apply to the disposal of a thing that
is perishable.
New section 219D(4) provides that 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 of the intention
to dispose of the thing.
New section 219D(5) provides that if a waterway manager gives
notice in writing to the owner of a thing under section 219D(4)
and the owner of the thing does not recover the thing within
28 days, the waterway manager may dispose of the thing after
the expiry of the 28 days. The disposal may occur by gift, sale
or destruction of the thing, or by otherwise dealing with the thing.
New section 219D(6) specifies that the requirements in
section 219D(5) do not apply to the disposal of a thing that is
perishable.
New section 219E allows waterway managers to recover costs
from the owner of moving, storage and disposal of things seized
under section 219A(1) or (2).
New section 219E(1) specifies that a waterway manager may
recover from the owner the costs of moving, storing and
disposing (if disposed) of a thing, if a waterway manager has
moved the thing under section 219A(1) or (2).
New section 219E(2) provides that an amount of costs payable
under section 219E(1) may be recovered in any court of
competent jurisdiction as a debt due to the waterway manager.
13
New section 219E(3) provides that if the thing is disposed of,
any amount that may be recovered under section 219E(1) must
be paid out of the proceeds, if any, of the disposal.
New section 219F allows for the payment of compensation to
owners in the event that they are unable to recover a thing that
has been disposed of under Division 2 of Part 5.5 of the Act.
New section 219F(1) provides that the waterway manager must
pay an owner and any other person with an interest in a thing
that has been disposed of under this Division and is unable to
be recovered, an amount commensurate with the value of the
person's interest in the thing, less any amount payable under
section 219E (regarding recovery of costs).
New section 219F(2) specifies that an amount of compensation
payable under section 219F(1) must be paid out of the proceeds
(if any) of the disposal of the thing.
New section 219F(3) allows a person with an interest in a
thing that has been disposed of under this Division to make
an application to the Magistrates' Court for an order that the
compensation be paid in accordance with section 219F(2).
The subsection specifies the orders that the Court can make
regarding such an application, being either or both of the
following--
• an order that compensation be paid to the person
making the application commensurate with the value
of the person's interest in the thing;
• 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 waterway
manager out of the proceeds of the sale of the thing.
New section 219F(4) specifies that an application to the
Magistrates' Court under section 219F(3) must be made
within 12 months of the date of the disposal of the thing.
New section 219F(5) provides that section 73(2) of the Personal
Property Securities Act 2009 of the Commonwealth applies to an
interest arising out of the operation of Division 2 of Part 5.5.
14
New section 219G provides for the distribution of the proceeds
of disposal for things moved under section 219A(1), where
neither the location nor the identity of the owner has been
established, namely that--
• the waterway manager may recover the costs of moving
and disposal of the thing from the proceeds of that
disposal; and
• if no claim has been made under section 219F within
12 months of the disposal of the thing, any proceeds
from the disposal must be paid to the State, after the
recovery of any costs of moving and disposal under
section 219G(a) by the waterway manager.
Clause 23 amends section 248(2) of the Principal Act.
Subclause (1) inserts reference to a vessel that is less than
35 metres long.
Subclause (2) repeals section 248(2)(d) which refers to
vessels less than 35 metres long, now covered by the addition
to section 248(2)(c).
This amendment reduces the exceptions to the requirement that
the master of a vessel use a pilot in pilot required waters.
Clause 24 inserts a reference to medical fitness in section 251(2)(b)(i)
of the Principal Act to additionally require evidence of the
applicant's medical fitness in applications for pilot licences.
This addition enhances marine safety by ensuring pilots are
competent and medically fit to conduct their duties.
Clause 25 amends section 252 of the Principal Act regarding the grant of
pilot licences to additionally require evidence of the applicant's
medical fitness.
Subclause (1) inserts a reference to medical fitness in
section 252(1)(a) to make medical fitness a requirement
that the Safety Director has to be satisfied of for the granting
of a pilot licence.
Subclause (2) substitutes the word "conditions" for "a condition"
in section 252(2) to allow for multiple conditions to be
imposed by the Safety Director on pilot licences granted under
subsection (1).
15
Subclause (3) inserts a new subsection (2A) after section 252(2)
which allows conditions on the grant of a pilot licence imposed
by the Safety Director to include conditions requiring the pilot
to maintain the pilot's competencies and medical fitness.
Clause 26 inserts new section 252A into the Principal Act to empower
the Safety Director to impose new conditions on already
granted pilot licences to require the holders to maintain their
pilot competencies and their medical fitness as specified in the
conditions.
Clause 27 substitutes a new section 285 of the Principal Act, which
imposes criminal liability upon officers of bodies corporate.
The change is made in line with Victoria's adoption of the 2012
Counsel of Australian Government's Personal Liability for
Corporate Fault - Guidelines for applying the COAG principles.
The Guidelines aim to ensure that officers of bodies corporate are
liable for specified offences where appropriate, with regard to the
nature of each specified offence.
New section 285(1) refers to a list of offence provisions under
section 285(2) and provides that if a body corporate commits an
offence against any of the listed provisions, 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.
The prosecution is required to prove that the body corporate
committed the offence.
This does not require a prior finding of guilt against the body
corporate but requires the prosecution to satisfy a court of
the necessary elements constituting the specific offence.
The prosecution is then required to prove, beyond reasonable
doubt, that the accused failed to exercise due diligence to
prevent the commission of the offence by the body corporate.
New section 285(2) lists offence provisions in the Principal Act
to which section 285(1) will apply.
New section 285(3) outlines factors which a court may consider
when determining whether an officer of a body corporate failed
to exercise due diligence, namely--
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• what the officer knew, or ought reasonably to have
known, about the commission of the offence by the
body corporate; and
• whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence; and
• what steps the officer took, or could reasonably have
taken, to prevent the commission of the offence; and
• any other relevant matter.
New section 285(4) provides that 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.
Section 285(4) does not limit any other defence available to
the officer.
New section 285(5) provides that an officer of a body
corporate may commit an offence against a provision listed
in section 285(2) whether or not the body corporate has been
prosecuted for, or found guilty of, an offence against that
provision.
This means that a finding by a court that an officer has
committed an offence for the purposes of this section is not
contingent on a prior finding of guilt against the body corporate
or prior prosecutorial action being taken against the body
corporate for the same offence.
New section 285(6) outlines definitions of body corporate and
officer for the purposes of the new section 285 by reference to
the Corporations Act.
Clause 28 inserts a new Part 8.8A into the Principal Act, which allows
the Safety Director to disclose relevant information to relevant
persons for certain purposes.
New section 298A outlines definitions for the purposes of
Part 8.8A, including the meaning of authorised representative,
consent and relevant information.
New section 298B specifies which information Part 8.8A applies
to.
17
New section 298B(1) stipulates that the Part applies to--
• information 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 the Act;
and
• information that identifies an individual or from which
an individual's identity can be reasonably ascertained.
New section 298B(2) provides that the facial image of an
individual is to be considered information that identifies
the individual or from which the individual's identity can be
reasonably ascertained, for the purposes of section 298B(1).
New section 298C(1) outlines, subject to section 298E, the
circumstances in which the Safety Director or other relevant
person may disclose or use relevant information (as defined in
section 298A), namely--
• in connection with the administration of the Act or the
regulations; or
• to provide information of community interest or benefit;
or
• for the purpose of research, or the compilation or
analysis of statistics, conducted in the public interest
(excluding research for publication in a form that
identifies an individual or from which an individual's
identity can be reasonably ascertained); or
• for the purpose of monitoring compliance with
a relevant marine safety law or enforcing the
requirements of the Act or the regulations; or
• if the disclosure or use is to the National Regulator
within the meaning of the Marine Safety (Domestic
and 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
• for the purpose of any legal proceedings arising out
of the Act or the regulations or for the purpose of any
report of such a proceeding; or
• at the direction of the Minister; or
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• 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
• with the consent of the individual to whom the
information relates or the authorised representative
of that individual; or
• to a not-for-profit organisation to assist the organisation
to locate a missing person or to facilitate the reunion of
members of a family or friends for non-commercial,
humanitarian purposes; or
• for the purposes of various functions and activities
when undertaken by or on behalf of a law enforcement
agency; or
• if the disclosure or use is required or authorised by law.
New section 298C(2) specifies circumstances in which the
Roads Corporation may use or disclose relevant information
in connection with the administration of the Principal Act or
the regulations, subject to section 298E, namely--
• in the course of using or disclosing relevant information
within the meaning of section 90I of the Road Safety
Act 1986; and
• in accordance with Part 7B of the Road Safety
Act 1986.
New section 298D provides for exceptional circumstances for the
disclosure of relevant information.
New section 298D(1) specifies when section 298D applies,
namely where the Minister is satisfied that--
• exceptional circumstances exist or have occurred,
whether inside or outside of Victoria; and
• it is appropriate to use or disclose relevant information
in accordance with this section during or in the
aftermath of those exceptional circumstances.
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New section 298D(2) provides that the Safety Director must
publish a notice on the Safety Director's Internet site upon
being notified that the Minister is satisfied of the matters in
section 298D(1), stating that--
• the Minister is satisfied as to the matters in
section 298D(1); and
• that the Safety Director or a relevant person may use or
disclose relevant information for the purpose of dealing
with the exceptional circumstances.
New section 298D(3) specifies the circumstances in which the
Safety Director or other relevant person may use or disclose
relevant information after the publishing of a notice on the
Safety Director's Internet site, namely--
• while a notice under section 298D(2) remains published
on the Internet site, but no later than 12 months after the
date it was first published; and
• if 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
• the use or disclosure is for a permitted purpose in
relation to the exceptional circumstances; and
• the disclosure is to an agency or organisation that--
• is, or is likely to be, involved in managing or
assisting in the management of, the exceptional
circumstances; or
• 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
• the disclosure is not to a media organisation.
New section 298D(4) provides definitions for the purposes of
section 298, including definitions of exceptional circumstances
and permitted purpose.
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New section 298E provides the purposes for which the Safety
Director or a relevant person must not disclose relevant
information to a person or body, without having an information
protection agreement in place. The section also outlines what
must be specified in an information protection agreement.
New section 298E(1) specifies the purposes for which the
Safety Director or a relevant person must not disclose relevant
information to a person or body, without having an information
protection agreement in place, unless the person or body has
entered into an information protection agreement with the Safety
Director first.
New section 298E(2) outlines the information that should be
specified in an information protection agreement, namely--
• the purpose for which the information is proposed to be
disclosed to the person or body; and
• the provision of the Act under which the Safety Director
is authorised to disclose the information; and
• the means by which the information will be provided by
the person or body; and
• how compliance with the terms of the agreement will be
monitored and enforced by each party to the agreement;
and
• the auditing arrangements; and
• the procedures for managing any breach of privacy; and
• an undertaking by the person or body that the
information will be used or disclosed only for the
purpose specified in the agreement.
New section 298E(3) provides that an information protection
agreement may include any other requirements, qualifications
or conditions that the Safety Director specifies.
New section 298E(4) stipulates the circumstances in which
section 298E(2) does not apply, namely if--
• 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
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• 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.
New section 298E(5) allows the Safety Director or other
relevant person to require a person or body to first enter into an
information protection agreement with the Safety Director if the
person or body requests relevant information for a purpose not
listed in section 298E(2).
New section 298E(6) specifies that 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 in certain circumstances, namely if--
• the person or body is a relevant person; and
• the relevant information is disclosed to the person or
body in their capacity as a relevant person.
Relevant person is defined in section 298A.
New section 298F stipulates that nothing in new Part 8.8A
requires the Safety Director or a relevant person to disclose
relevant information.
New section 298F notes that the Safety Director or a relevant
person is entitled not to disclose relevant information if there is
no legal obligation to disclose it.
New section 298G(1) provides that a document which contains
relevant information is an exempt document within the meaning
of section 38 of the Freedom of Information Act 1982.
New section 298G(2) specifies that section 298G(1) does not
limit the operation of section 38 of the Freedom of Information
Act 1982.
New section 298H provides that the Safety Director or other
relevant person must not disclose relevant information or use
the person's knowledge of relevant information unless authorised
under Part 8.8A. The penalty for breach of the provision is
120 penalty units.
Clause 29 repeals section 306 of the Principal Act which currently deals
with the disclosure of information.
22
Clause 30 amends the general regulation-making power in section 309(1)(f)
of the Principal Act relating to the prescription of examination
requirements, including for the purposes of determining medical
fitness or competency of a person to apply to granting, issuing or
maintaining a permission.
Clause 31 inserts a new paragraph (ab) after section 310(1)(a) of the
Principal Act, to further provide for the regulatory powers
under which the Safety Director may impose annual fees,
rates or charges for the holding of a permission.
Clause 32 amends the definition of authorised representative in the
newly inserted section 298A of the Marine Safety Act 2010
(see clause 27). This clause will come into effect when Part 3
of the Medical Treatment Planning and Decision Act 2016
comes into operation.
Clause 33 makes a statute law revision to section 165(3)(b) of the Marine
Safety Act 2010 to amend reference to another Act.
Part 3--Amendment of Marine (Drug, Alcohol
and Pollution Control) Act 1988
Part 3 amends the Marine (Drug, Alcohol and Pollution Control) Act 1988
to improve the operation of the Act, make changes to blood sample collection
procedures and provide for the criminal liability of officers of bodies
corporate for certain offences under the Act.
Clause 34 repeals sections 31(9B) and 31(11) of the Marine (Drug,
Alcohol and Pollution Control) Act 1988 which require
blood samples to be provided to a person from whom a blood
sample was taken. The repeal of these sections is to ensure that
ports and marine blood sampling procedures align with blood
sampling procedures in the Road Safety Act 1986.
Section 31(9B) requires a registered medical practitioner or
approved health professional who takes a sample of blood under
section 31(9A) to deliver part of the sample to the person who
required it to be taken and another part to the person from whom
the sample was taken.
Section 31(11) requires part of a sample of blood taken under
section 31(10) to be delivered to the person who required a
sample of breath to be taken under section 31. Section 31(10)
allows a person who is required to provide a sample of breath
23
under section 31 to request the person responsible for taking the
breath sample to arrange for the taking of a sample of that
person's blood for analysis, in the presence of a police officer.
Clause 35 amends section 31A of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 in order to permit approved
health professionals to take blood samples when a person is
brought for examination as a consequence of a marine incident
involving a vessel. At present only doctors are permitted to
take blood samples, which is inconsistent with changes to
corresponding road and rail laws.
Subclauses (1), (3), (4) and (5) insert references to "an approved
health professional" into section 31A(2), (4), (6) and (7) of the
Act.
Subclause (2) substitutes a new section 31A(3) into the Marine
(Drug, Alcohol and Pollution Control) Act 1988 which
effectively repeals sections 31A(3)(b), (c) and (d) of the Act.
The repealed subsections contain certain exceptions to the rule
in section 31A(2) of the Marine (Drug, Alcohol and Pollution
Control) Act 1988 which requires the taking of blood samples
in certain circumstances following a marine incident involving
a vessel. The repeal of the exceptions in section 31A(3)(b),
(c) and (d) is to ensure that ports and marine blood sampling
procedures align with blood sampling procedures in the Road
Safety Act 1986.
Clause 36 repeals section 31AB(3) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 which requires a registered
medical practitioner or approved health professional who takes
a sample of blood, or is furnished with a sample of urine, under
section 31AB to deliver a part of the sample to the police officer
who required it to be taken or furnished and another part to the
person from whom the sample was taken or furnished.
The section is repealed to ensure that ports and marine blood
and fluid sampling procedures align with blood and fluid
sampling procedures in the Road Safety Act 1986.
Clause 37 repeals sections 31AE(14) and 31AE(19) of the Marine
(Drug, Alcohol and Pollution Control) Act 1988. The repeal
of these sections ensures that ports and marine blood sampling
procedures align with blood sampling procedures in the Road
Safety Act 1986.
24
Section 31AE(14) requires a registered medical practitioner
or approved health professional who takes a sample of blood
under section 31AE(13) to deliver part of the sample to the
police officer who required it to be taken and another part to
the person from whom the sample was taken.
Section 31AE(19) requires a part of a sample of blood taken
under section 31AE(18) to be delivered to the person who
required an oral fluid sample to be provided under section 31AE.
Section 31AE(18) allows a person who is required to provide an
oral fluid sample under section 31AE to request the police officer
making the requirement to arrange for the taking of a sample of
that person's blood for analysis, in the presence of a police
officer.
Clause 38 repeals section 32(8)(b)(iii) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 which requires blood samples to
be taken in accordance with the Code of Practice for Taking
Blood Samples from Road Accident Victims.
The subsection is repealed in order to ensure that ports and
marine blood sampling requirements align with blood sampling
requirements in the Road Safety Act 1986.
Clause 39 amends section 33(5) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 in order to update the types of
breath analysing instruments used for evidentiary purposes
under the Act.
Clause 38 does this by substituting the following--
'the expressions--
• "Alcotest 7110" and "3530791"; or
• "Alcotest 9510 AUS" and "8320869"'
for 'the expressions "Drager Alcotest 7110" and "3530791"'.
This amendment ensures the descriptions and processes are
consistent with changes to those instruments used under roads
legislation.
Clause 40 makes a statute law revision to section 33A(1) of the Marine
(Drug, Alcohol and Pollution Control) Act 1988 by
substituting "0.05" for ".05".
25
Clause 41 makes a statute law revision by repealing section 38(7) of the
Marine (Drug, Alcohol and Pollution Control) Act 1988.
Clause 42 inserts a new section 67 into the Marine (Drug, Alcohol and
Pollution Control) Act 1988 to provide for criminal liability
of officers of bodies corporate. The change is made in line
with Victoria's adoption of the 2012 Counsel of Australian
Government's Personal Liability for Corporate Fault -
Guidelines for applying the COAG principles. The Guidelines
aim to ensure that officers of bodies corporate are liable for
offences only where appropriate, with regard to the nature of
each specified offence.
New section 67(1) provides that if a body corporate commits an
offence against a provision listed in section 67(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.
The prosecution is required to prove that the body corporate
committed the offence.
This does not require a prior finding of guilt against the body
corporate but requires the prosecution to satisfy the court of the
necessary elements constituting the specific offence.
The prosecution is then required to prove, beyond reasonable
doubt, that the accused failed to exercise due diligence to
prevent the commission of the offence by the body corporate.
New section 67(2) lists the provisions of the Marine
(Drug, Alcohol and Pollution Control) Act 1988 to
which section 67(1) applies, namely--
• section 39(2); and
• section 46(1).
New section 67(3) outlines what a court may have regard to
when determining whether an officer of a body corporate failed
to exercise due diligence, namely--
• what the officer knew, or ought reasonably to have
known, about the commission of the offence by the
body corporate; and
26
• whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence; and
• what steps the officer took, or could reasonably have
taken, to prevent the commission of the offence by the
body corporate; and
• any other relevant matter.
New section 67(4) stipulates that 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.
Section 67(4) does not limit any other defence available to
the officer.
New section 67(5) provides that an officer of a body corporate
may commit an offence against a provision listed in section 67(2)
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence against that provision.
A finding by a court that an officer has committed an offence for
the purposes of this section is not contingent on a prior finding of
guilt against the body corporate or prior prosecutorial action
being taken against the body corporate for the same offence.
New section 67(6) outlines definitions of body corporate and
officer for the purposes of the new section 67 by reference to
the Corporations Act 2001 of the Commonwealth.
Part 4--Amendment of Port Management Act 1995
Part 4 amends the Port Management Act 1995 to allow all port managers
to relocate, seize and dispose of things abandoned at ports and recover
associated costs. Part 4 also makes other minor amendments to improve
the operation of the Act.
Clause 43 inserts a new section 88AP into the Port Management Act 1995
which extends the powers regarding the removal of abandoned or
unclaimed goods or things to all port managers of relevant ports.
The new section 88AP specifies a definition of relevant port
for the purposes of Division 4 of the Act which contains powers
regarding abandoned or unclaimed goods or things.
27
Clause 44 substitutes an updated section 88Q into the Port Management
Act 1995.
Updated section 88Q amends the applicability of the power to
remove goods or things in certain circumstances to apply to all
port managers.
It does this by replacing references to "the Victorian Ports
Corporation (Melbourne)" with references to "a port manager"
and referring to the new definition of "relevant port" rather than
"port of Melbourne". These changes allow the powers to apply
more broadly across relevant ports.
Clause 45 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in section 88R(2)
of the Port Management Act 1995 with references to port
managers generally in order to apply the powers that apply
when moving things to all port managers.
Clause 46 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in section 88S
of the Port Management Act 1995 with references to port
managers generally in order to apply the requirement to make
enquiries regarding the owner of a thing to all port managers.
Clause 47 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in sections 88T(1),
(2), (4) and (5) of the Port Management Act 1995 with
references to port managers generally in order to apply the
powers relating to disposal of a thing to all port managers.
Clause 48 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in sections 88U
of the Port Management Act 1995 with references to port
managers generally in order to apply the powers relating to
recovery of costs for moving, storing and disposal of things
to all port managers.
Clause 49 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in sections 88V(1)
and (3)(b) of the Port Management Act 1995 with references to
port managers generally in order to apply the provisions relating
to payment of compensation for unrecoverable disposed things to
all port managers.
28
Clause 50 substitutes references to the Victorian Ports Corporation
(Melbourne) or port of Melbourne operator in sections 88W(a)
and (b)(i) of the Port Management Act 1995 with references to
port managers generally in order to apply the provision relating
to the distribution of proceeds of disposal of a thing to all port
managers.
Clause 51 amends section 97 of the Port Management Act 1995 regarding
the power to prosecute for an offence under Part 4A, Part 5B or
regulations under section 98(1)(cb), (cc) or (cd) of the Act to
improve the clarity of the provision.
Subclause (1) amends section 97 of the Act by substituting the
word "commenced" for the word "brought".
Subclause (2) inserts a new subsection 97(2) at the end of
section 97 which stipulates that proceedings for an offence
against the Act or regulations made under the Act may be
commenced by the Secretary.
Part 5--Amendment of Road Safety Act 1986
Part 5 amends the Road Safety Act 1986 consequential to the introduction of
new information disclosure provisions in the Marine Safety Act 2010.
Clause 52 substitutes a reference to Part 8.8A of the Marine Safety
Act 2010 for the reference to "section 306(2)" in section 90K(h)
of the Road Safety Act 1986, as Part 8.8A of the Marine Safety
Act 2010 now replaces the section 306 disclosure of information
provision of that Act.
Part 6--Repeal of amending Act
Clause 53 provides for the repeal of the Ports and Marine Legislation
Amendment Act 2017 on 1 February 2019.
The repeal of the amending Act does not affect in any way
the continuing operation of the amendments made by the
Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
29