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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Western Australian Marine Amendment
Bill 2023
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Western Australian Marine
Act 1982 amended
3. Act amended 3
4. Section 3 amended 3
5. Section 59 deleted 5
6. Part 3A inserted 5
Part 3A -- Safe navigation of vessels, and alcohol
and drug related offences
Division 1 -- Preliminary
75A. Terms used 5
75AA. When individual operates or navigates
vessel 6
75AB. When vessel is involved in incident 6
75AC. Person taken to be in command or charge
of vessel for purposes of Parts 3A and 3B 6
75AD. Person is incapable of having proper
control of vessel 8
75AE. Person with BAC of 0.15 or above taken
to be incapable of proper control 8
75AF. Circumstances of aggravation 8
Division 2 -- Safe navigation of vessels and alcohol
and drug related offences
Subdivision 1 -- Dangerous navigation of vessels
occasioning death, grievous bodily harm or
bodily harm
75B. Dangerous navigation of vessel
occasioning death 9
135--1 page i
Western Australian Marine Amendment Bill 2023
Contents
75BA. Dangerous navigation of vessel
occasioning grievous bodily harm 11
75BB. Dangerous navigation of vessel
occasioning bodily harm 14
75BC. Careless navigation of vessel occasioning
death, grievous bodily harm or bodily
harm 16
Subdivision 2 -- Reckless, dangerous and careless
navigation of vessels
75BD. Reckless navigation of vessel 17
75BE. Dangerous navigation of vessel 18
75BF. Careless navigation of vessel 20
Subdivision 3 -- Provisions relating to offences in
Subdivisions 1 and 2
75BG. Application of Subdivision 20
75BH. Circumstances occasioning death,
grievous bodily harm or bodily harm 20
75BI. Provisions for offences involving incidents
occasioning death, grievous bodily harm
or bodily harm 22
75BJ. Defence: death or harm not attributable to
alcohol or drugs 22
75BK. Defence: death or harm not attributable to
manner of operation or level of care and
attention 23
75BL. Defence: inspector or police officer
navigating vessel in certain circumstances 23
Division 3 -- Navigation of vessels while under the
influence of alcohol or drugs or impaired by
drugs
75C. Navigation of vessel while under influence
of alcohol or drugs 24
75CA. Navigation of vessel while under influence
of both alcohol and drugs 27
75CB. Defence: under influence of drug
prescribed or administered for therapeutic
reasons 31
75CC. Master must not permit person under
influence of alcohol or drugs or both to
operate vessel 31
75CD. Navigation of vessel while impaired by
drugs 32
75CE. When person may be convicted of
navigation of vessel while impaired by
drugs offence 34
75CF. Defence: impaired by drug prescribed or
administered for therapeutic reasons 34
page ii
Western Australian Marine Amendment Bill 2023
Contents
75CG. Rights of person charged with particular
offences 35
Division 4 -- Navigation of vessels with particular
BAC or prescribed illicit drug present
75D. Navigation of vessel while BAC is 0.05 or
above 36
75DA. Navigation of vessel while BAC is 0.08 or
above 38
75DB. Navigation of vessel while prescribed illicit
drug present 40
75DC. Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present 42
75DD. Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present 45
75DE. Mistaken belief about prescribed illicit drug
is not defence 48
7. Part 3B inserted 49
Part 3B -- Testing for alcohol and drugs
Division 1 -- Preliminary
75E. Terms used 49
75EA. Authorised operators for operating breath
analysing equipment 51
75EB. Authorised drug testers for operating drug
testing devices 52
75EC. Using breath sample to work out BAC 52
75ED. Powers additional to other powers 53
Division 2 -- Testing for alcohol
Subdivision 1 -- Preliminary breath tests
75EE. General power to require breath sample
for preliminary breath test 53
75EF. Power to require breath sample for
preliminary breath test following incident 54
75EG. Compliance with requirement 54
Subdivision 2 -- Breath analysis or blood samples
following preliminary breath test or
commission of certain offences
75EH. Power to require breath or blood sample
following requirement for preliminary
breath test 54
75EI. Power to require breath or blood sample
for analysis following commission of
certain offences 56
75EJ. Compliance with requirement 57
75EK. Further sample of breath for breath
analysis 57
page iii
Western Australian Marine Amendment Bill 2023
Contents
75EL. When inspector or police officer must not
impose testing requirement because of
physical incapacity 58
75EM. Breath analysis indicates BAC of 0.05 or
above 58
Subdivision 3 -- Blood samples in other
circumstances including following serious
incident
75EN. Power to require blood sample in other
circumstances 59
75EO. Power to require blood sample following
incident occasioning death or serious
bodily harm 60
75EP. When inspector or police officer must not
require blood sample to be taken 61
75EQ. Compliance with requirement 61
Division 3 -- Testing for drugs
Subdivision 1 -- Preliminary oral fluid tests
75F. General power to require oral fluid sample
for preliminary oral fluid test 62
75FA. Powers to require oral fluid samples for
preliminary oral fluid tests 62
75FB. Compliance with requirement 63
Subdivision 2 -- Drug testing and blood samples
75FC. Power to require oral fluid sample for drug
testing following preliminary oral fluid test 63
75FD. Further sample of oral fluid for drug testing 64
75FE. When inspector or police officer must not
impose testing requirement because of
physical incapacity 64
75FF. Power to require blood sample instead of
oral fluid sample 65
75FG. Compliance with requirement 65
Subdivision 3 -- Assessment of drug impairment
and related provisions
75FH. Assessments of drug impairment 66
75FI. When inspector or police officer must not
impose testing requirement because of
physical incapacity 67
75FJ. Power to require blood samples for drug
analysis 67
75FK. Compliance with requirement 68
Division 4 -- Enforcement powers relating to testing
for alcohol and drugs
75G. Requirement to leave vessel, accompany
inspector or police officer to place or wait
at place 68
page iv
Western Australian Marine Amendment Bill 2023
Contents
75GA. Requirement to stop vessel or navigate to
suitable location 69
75GB. Power to board and move vessel 71
75GC. Power to prevent use of vessel by alleged
offender 71
75GD. Compliance with requirement 73
75GE. Return of keys to vessel 74
75GF. Prohibiting person from navigating vessel
for 24 hours if prescribed illicit drug
present 75
75GG. Requirements for prohibition notice 76
Division 5 -- Failure to comply with alcohol or drug
testing requirements
Subdivision 1 -- General offences relating to failure
to comply with alcohol or drug testing
requirements
75H. Failure to comply with requirement:
preliminary breath test, preliminary oral
fluid test or boarding or moving vessel 77
75HA. Defence: compliance with later
requirement 79
75HB. Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place 80
75HC. Failure to comply with requirement:
incident occasioning death, grievous
bodily harm or bodily harm 83
75HD. Failure to comply with requirement: oral
fluid sample for drug testing or blood
sample 84
75HE. Failure to comply with requirements
relating to assessment of drug impairment 86
Subdivision 2 -- Failure to comply with drug testing
requirements in circumstances relating to
person's BAC
75HF. Term used: drug testing requirement 88
75HG. Failure to comply with drug testing
requirement: BAC of 0.05 or above 88
75HH. Failure to comply with drug testing
requirement: BAC of 0.08 or above 91
75HI. Failure to comply with drug testing
requirement: BAC of 0.15 or above 95
Subdivision 3 -- Defence for failing to comply with
alcohol or drug testing requirement
75HJ. Substantial reasons for failing to comply
with requirements or later providing
certain samples 98
page v
Western Australian Marine Amendment Bill 2023
Contents
Division 6 -- General provisions relating to alcohol
and drug testing
75I. Responsibility to facilitate medical
assistance 99
75IA. When inspector or police officer must not
impose testing requirement because of
passage of time 99
75IB. Taking of oral fluid samples for oral fluid
analysis 100
75IC. Authorisation for prescribed sample takers
authorised to take blood samples 100
75ID. Authorisation to take blood samples when
person deceased 101
75IE. Taking blood samples for analysis 102
75IF. Oral fluid and blood samples delivered to
Chemistry Centre (WA) 103
75IG. Samples of oral fluid or blood not to be
used to obtain DNA profile 104
Division 7 -- Administrative matters
75J. Regulations relating to alcohol and drug
testing and other matters 104
75JA. Minister may approve alcohol and drug
testing devices 105
75JB. Delegation by Commissioner of Police 105
8. Section 124FA inserted 106
124FA. Approved forms 106
9. Part 8A inserted 107
Part 8A -- Disqualification from holding or obtaining
WA marine qualification
Division 1 -- Preliminary
124G. Terms used 107
Division 2 -- Disqualification notices
124GA. Disqualification by inspector or police
officer 108
124GB. Requirements for disqualification notice 109
124GC. Limitation on giving disqualification notice 110
124GD. Period of disqualification under
disqualification notice 110
124GE. Amendment of disqualification notice 110
124GF. Particulars of disqualification notice given
to chief executive officer 111
124GG. Revocation of disqualification notice by
inspector or police officer 111
124GH. Court may order revocation of
disqualification notice 112
page vi
Western Australian Marine Amendment Bill 2023
Contents
124GI. Disqualification notice automatically
revoked on acquittal or dismissal of
charge 113
124GJ. Period of disqualification under
disqualification notice to be taken into
account in sentencing 113
Division 3 -- Provisions relating to disqualification
orders by a court
124GK. Application of Division 113
124GL. Notifying chief executive officer of
disqualification order 114
124GM. Removal of disqualification 114
124GN. Removal of disqualification: additional
provisions 115
124GO. Notifying chief executive officer of
disqualification order 115
Division 4 -- Effect of disqualifications and other
matters
124GP. Effect of disqualification 116
124GQ. Other effects of disqualification 116
124GR. Calculating period of disqualification 117
124GS. Navigating certain vessels when
disqualified from holding or obtaining WA
marine qualification 117
10. Part IX Divisions 1 and 2 inserted 119
Division 1 -- Evidentiary provisions for
alcohol-related offences and drug-related
offences
Subdivision 1 -- Preliminary
124H. Terms used 119
124HA. Certificate is evidence of stated facts 120
124HB. No limit on other evidence in proceedings 120
Subdivision 2 -- Evidence in proceedings for
alcohol-related offences
124HC. Alcohol-related offence and material time 121
124HD. Evidence in proceeding for alcohol-related
offence 122
124HE. Evidence of authorised operator of breath
analysing equipment 123
124HF. Certificate of authorised operator of breath
analysing equipment 123
124HG. Certificate of analyst relating to analysis of
blood sample for alcohol 124
124HH. Proof of person's BAC for certain offences 125
Subdivision 3 -- Evidence in proceedings for
drug-related offences
124HI. Drug-related offence and material time 126
page vii
Western Australian Marine Amendment Bill 2023
Contents
124HJ. Evidence in proceedings for drug-related
offences 128
124HK. Certificate of authorised drug tester 129
124HL. Certificate of drugs analyst relating to
analysis of oral fluid or blood sample for
drugs 129
124HM. Certificate of approved expert relating to
usual effect of particular drugs 130
124HN. Certificate of inspector or police officer 131
124HO. Proof of presence of drugs 131
Subdivision 4 -- Other evidentiary provisions
124HP. Certificate of chief executive officer,
Commissioner of Police or CEO of
Chemistry Centre (WA) 132
124HQ. Certificate of technologist who prepared
sampling equipment 133
124HR. Certificate of prescribed sample taker 134
124HS. Evidence of delivery of blood or oral fluid
samples 135
124HT. Procedural requirements for admissibility
of particular certificate evidence 135
124HU. Evidence relating to preliminary oral fluid
test, drug testing and preliminary breath
test is admissible in certain proceedings
with consent 136
Division 2 -- Provisions relating to sentencing for
dangerous navigation and alcohol and drug
related offences
124I. Term used: young person 138
124IA. Limitation on period for which previous
offences taken into account 138
124IB. Sentencing for particular offences: option
for community based order or youth
community based order 139
124IC. Sentencing for particular offences if
community based order or intensive
supervision order imposed 141
124ID. Pre-sentence report required for
sentencing for navigation while impaired
by drugs 142
124IE. Sentencing for first offence of navigation
while impaired by drugs or failure to
comply with drug impairment assessment 142
124IF. Sentencing for second or subsequent
offence of navigation while impaired by
drugs or failure to comply with drug
impairment assessment 143
page viii
Western Australian Marine Amendment Bill 2023
Contents
124IG. Mandatory disqualification 144
124IH. Minimum fines 145
11. Part IX Division 3 heading inserted 146
Division 3 -- General matters
12. Part X Division 3 inserted 146
Division 3 -- Western Australian Marine Amendment
Act 2023
138. Offences against repealed section 59 146
139. Transitional regulations 146
Part 3 -- Other Acts amended
13. Bail Act 1982 amended 149
14. Community Protection (Offender Reporting)
Act 2004 amended 149
15. The Criminal Code amended 150
16. Criminal Investigation Act 2006 amended 151
17. Criminal Law (Mental Impairment) Act 2023
amended 152
Subdivision 6 -- Offences under Western Australian
Marine Act 1982
18. Criminal Law (Mentally Impaired Accused)
Act 1996 amended 152
19. Evidence Act 1906 amended 153
Part 3 -- Offences under the Western Australian
Marine Act 1982
20. High Risk Serious Offenders Act 2020 amended 154
Subdivision 6 -- Offences under Western Australian
Marine Act 1982
21. National Disability Insurance Scheme (Worker
Screening) Act 2020 amended 154
22. Sentencing Act 1995 amended 156
23. Working with Children (Screening) Act 2004
amended 158
24. Young Offenders Act 1994 amended 158
page ix
Western Australia
LEGISLATIVE ASSEMBLY
Western Australian Marine Amendment
Bill 2023
A Bill for
An Act to amend the Western Australian Marine Act 1982 and to
make consequential amendments to other Acts.
The Parliament of Western Australia enacts as follows:
page 1
Western Australian Marine Amendment Bill 2023
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Western Australian Marine Amendment Act 2023.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent (assent day);
8 (b) section 17 --
9 (i) if the Criminal Law (Mental Impairment)
10 Act 2023 Schedule 1 comes into operation on or
11 before assent day -- on the day after assent day;
12 or
13 (ii) otherwise -- immediately after the Criminal Law
14 (Mental Impairment) Act 2023 Schedule 1 comes
15 into operation;
16 (c) the rest of the Act -- on a day fixed by proclamation,
17 and different days may be fixed for different provisions.
page 2
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 3
1 Part 2 -- Western Australian Marine Act 1982 amended
2 3. Act amended
3 This Part amends the Western Australian Marine Act 1982.
4 4. Section 3 amended
5 (1) In section 3(1) insert in alphabetical order:
6
7 alcohol or drug testing requirement, in relation to a
8 person, means a requirement imposed on the person
9 under Part 3B Division 2 or 3;
10 analyst has the meaning given in the Road Traffic
11 Act 1974 section 65;
12 BAC, in relation to a person, means the concentration
13 of alcohol in the person's blood, expressed in grams of
14 alcohol per 100 mL of blood;
15 Example for this definition:
16 A BAC of 0.08 g is a concentration of 0.08 g of alcohol per
17 100 mL of blood.
18 bodily harm has the meaning given in The Criminal
19 Code section 1(1);
20 Chemistry Centre (WA) means the body established by
21 the Chemistry Centre (WA) Act 2007 section 4(1);
22 Commissioner of Police means the person holding or
23 acting in the office of Commissioner of Police under
24 the Police Act 1892;
25 dentist means a person --
26 (a) registered under the Health Practitioner
27 Regulation National Law (Western Australia)
28 in the dental profession; and
29 (b) whose name is entered on the dentists division
30 of the Register of Dental Practitioners kept
31 under that Law;
page 3
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 4
1 drug has the meaning given in the Road Traffic
2 Act 1974 section 65;
3 drugs analyst has the meaning given in the Road
4 Traffic Act 1974 section 65;
5 grievous bodily harm has the meaning given in
6 The Criminal Code section 1(1);
7 leave vessel, accompany officer or wait requirement,
8 in relation to a person, means a requirement imposed
9 on the person under section 75G;
10 marine qualification means --
11 (a) a WA marine qualification; or
12 (b) a qualification, permit, licence or certificate
13 (however described) issued to a person --
14 (i) in relation to navigating or operating a
15 vessel (as those terms are defined in
16 section 75AA(1) and (2)), or required
17 by crew of a vessel; and
18 (ii) under a law of another Australian
19 jurisdiction or an overseas jurisdiction;
20 medical practitioner means a person registered under
21 the Health Practitioner Regulation National Law
22 (Western Australia) in the medical profession;
23 nurse practitioner means a person registered under the
24 Health Practitioner Regulation National Law (Western
25 Australia) in the nursing profession whose registration
26 under that Law is endorsed as nurse practitioner;
27 pilot means a person who does not belong to, but has
28 the conduct of, a vessel;
29 prescribed illicit drug means a drug that is --
30 (a) a prescribed illicit drug as defined in the Road
31 Traffic Act 1974 section 65; or
32 (b) a drug prescribed for the purposes of this
33 definition;
page 4
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 5
1 WA marine qualification means a qualification,
2 including a licence, issued to a person under this Act
3 that authorises the person to navigate a vessel (as
4 defined in section 75AA(2)).
5
6 (2) In section 3(1) in the definition of wages delete "kind." and
7 insert:
8
9 kind;
10
11 5. Section 59 deleted
12 Section 59 deleted.
13 6. Part 3A inserted
14 (1) After Part III insert:
15
16 Part 3A -- Safe navigation of vessels, and
17 alcohol and drug related offences
18 Division 1 -- Preliminary
19 75A. Terms used
20 In this Part --
21 0.08+ and illicit drug offence means an offence against
22 section 75DD(1);
23 0.08+ offence means an offence against
24 section 75DA(1);
25 circumstances of aggravation has the meaning given
26 in section 75AF;
27 involved, for a vessel in relation to an incident, has the
28 meaning given in section 75AB;
page 5
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 navigate, a vessel, has the meaning given in
2 section 75AA(2);
3 operate, a vessel, has the meaning given in
4 section 75AA(1).
5 75AA. When individual operates or navigates vessel
6 (1) An individual operates a vessel if the individual --
7 (a) determines or exercises control over the course
8 or direction of the vessel, or the means of
9 propulsion of the vessel, whether or not the
10 vessel is underway or being towed by another
11 vessel; or
12 (b) pilots the vessel.
13 (2) An individual navigates a vessel if the individual --
14 (a) operates the vessel; or
15 (b) is in command or charge of the vessel while the
16 individual, or another individual or other
17 individuals, operate or attempt to operate the
18 vessel.
19 75AB. When vessel is involved in incident
20 A vessel is involved in an incident if --
21 (a) the presence of the vessel occasioned the
22 incident; or
23 (b) the use of the vessel is an immediate or
24 proximate cause of the death of, or injury to, a
25 person or damage to property occasioned by the
26 incident.
27 75AC. Person taken to be in command or charge of vessel
28 for purposes of Parts 3A and 3B
29 (1) This section applies for the purposes of Parts 3A and
30 3B and in the absence of proof to the contrary.
page 6
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 (2) A person is taken to be in command or charge of a
2 vessel at a particular time if, at that time --
3 (a) the person is the only person, or the only person
4 who is 18 years of age or above, on the vessel;
5 or
6 (b) the person appears, without contradiction by
7 any other person on the vessel, to be in
8 command or charge of the vessel; or
9 (c) the other persons on the vessel, or a majority of
10 them, acknowledge that the person is in charge
11 of the vessel; or
12 (d) of all the persons on the vessel, the person has
13 ultimate control over the course or direction of
14 the vessel, or the means of propulsion of the
15 vessel, whether or not --
16 (i) the vessel is underway; or
17 (ii) the person is operating the vessel.
18 Example for this subsection:
19 For the purposes of paragraph (b), the person says or does
20 something that makes them appear to be in command or
21 charge of the vessel.
22 (3) A person who owns a vessel is taken to be in command
23 or charge of the vessel if the person --
24 (a) is on the vessel; and
25 (b) holds a marine qualification that authorises the
26 person to navigate the vessel.
27 (4) A person who has command or charge of a vessel
28 continues to have command or charge of the vessel
29 until the person has ensured that --
30 (a) the command or charge of the vessel has been
31 handed to another person; and
32 (b) the other person has accepted the command or
33 charge.
page 7
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 75AD. Person is incapable of having proper control of
2 vessel
3 For the purposes of this Part, a reference to a person
4 being incapable of having proper control of a vessel
5 includes --
6 (a) a reference to the person being incapable of
7 having proper control over --
8 (i) the course or direction of the vessel; or
9 (ii) the means of propulsion of the vessel;
10 and
11 (b) a reference to the person who is the pilot of the
12 vessel being incapable of having proper
13 conduct of the vessel; and
14 (c) a reference to the person who is the master of a
15 vessel being incapable of having proper
16 command or charge of the vessel.
17 75AE. Person with BAC of 0.15 or above taken to be
18 incapable of proper control
19 (1) This section applies in a proceeding for an offence if it
20 is alleged that, at the time of the alleged offence, the
21 person charged was under the influence of alcohol to
22 such an extent as to be incapable of having proper
23 control of a vessel.
24 (2) The person is taken to have been under the influence of
25 alcohol to that extent at the time of the alleged offence
26 if the person had a BAC of 0.15 g or above at that time.
27 75AF. Circumstances of aggravation
28 (1) For the purposes of this Part, a person commits an
29 offence, or navigates a vessel, in circumstances of
page 8
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 aggravation if at the time of the alleged offence or
2 navigation --
3 (a) the person was unlawfully navigating the vessel
4 without the consent of an owner or the master
5 of the vessel; or
6 (b) if a speed limit applied to the vessel or the
7 waters in which it was operating -- the person
8 was navigating the vessel at a speed that
9 exceeded the speed limit by 10 knots or more;
10 or
11 (c) the person was navigating the vessel to escape
12 pursuit by an inspector or police officer.
13 (2) Subsection (1)(c) applies whether the pursuit was
14 proceeding, or had been suspended or terminated, at
15 the time of the alleged offence.
16 Division 2 -- Safe navigation of vessels and alcohol and
17 drug related offences
18 Subdivision 1 -- Dangerous navigation of vessels occasioning
19 death, grievous bodily harm or bodily harm
20 75B. Dangerous navigation of vessel occasioning death
21 (1) A person commits a crime if --
22 (a) a vessel navigated by the person is involved in
23 an incident occasioning the death of another
24 person; and
25 (b) at the time of the incident, the person was
26 navigating the vessel while under the influence
27 of alcohol, a drug, or alcohol and a drug to such
28 an extent as to be incapable of having proper
29 control of the vessel.
30 Alternative offence for this subsection: subsection (2)
31 or an offence specified in the Table.
page 9
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 Table -- Alternative offences
Section no. Section heading
s. 75BA(1) or (2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) or (3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
2 Penalty for this subsection: imprisonment for 20 years
3 and a fine of any amount.
4 (2) A person commits a crime if --
5 (a) a vessel navigated by the person is involved in
6 an incident occasioning the death of another
7 person; and
8 (b) at the time of the incident, the person was
9 navigating the vessel in a manner that is
10 dangerous to the public or to any person,
11 having regard to all the circumstances of the
12 case.
13 Alternative offence for this subsection: subsection (1)
14 or an offence specified in the Table.
page 10
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 Table -- Alternative offences
Section no. Section heading
s. 75BA(1) or (2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) or (3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
2 Penalty for this subsection:
3 (a) if the offence is committed in circumstances
4 of aggravation -- imprisonment for 20 years
5 and a fine of any amount;
6 (b) otherwise -- imprisonment for 10 years and
7 a fine of any amount.
8 (3) A court sentencing a person for an offence against
9 subsection (1) or (2) must order that the person is
10 disqualified from holding or obtaining a WA marine
11 qualification for a period of not less than 2 years.
12 75BA. Dangerous navigation of vessel occasioning grievous
13 bodily harm
14 (1) A person commits a crime if --
15 (a) a vessel navigated by the person is involved in
16 an incident occasioning grievous bodily harm
17 to another person; and
page 11
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 (b) at the time of the incident, the person was
2 navigating the vessel while under the influence
3 of alcohol, a drug, or alcohol and a drug to such
4 an extent as to be incapable of having proper
5 control of the vessel.
6 Alternative offence for this subsection: subsection (2)
7 or an offence specified in the Table.
8 Table -- Alternative offences
Section no. Section heading
s. 75BB(1) or (3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
9 Penalty for this subsection: imprisonment for 14 years
10 and a fine of any amount.
11 Summary conviction penalty for this subsection:
12 imprisonment for 3 years or a fine of $36 000.
13 (2) A person commits a crime if --
14 (a) a vessel navigated by the person is involved in
15 an incident occasioning grievous bodily harm
16 to another person; and
17 (b) at the time of the incident, the person was
18 navigating the vessel in a manner that is
19 dangerous to the public or to any person,
page 12
Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 having regard to all the circumstances of the
2 case.
3 Alternative offence for this subsection: subsection (1)
4 or an offence specified in the Table.
5 Table -- Alternative offences
Section no. Section heading
s. 75BB(1) or (3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
6 Penalty for this subsection:
7 (a) if the offence is committed in circumstances
8 of aggravation -- imprisonment for 14 years
9 and a fine of any amount;
10 (b) otherwise -- imprisonment for 7 years or a
11 fine of any amount.
12 Summary conviction penalty for this subsection:
13 imprisonment for 3 years or a fine of $36 000.
14 (3) A court sentencing a person for an offence against
15 subsection (1) or (2) must order that the person is
16 disqualified from holding or obtaining a WA marine
17 qualification for a period of not less than 2 years.
page 13
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 75BB. Dangerous navigation of vessel occasioning bodily
2 harm
3 (1) A person commits a crime if --
4 (a) a vessel navigated by the person is involved in
5 an incident occasioning bodily harm to another
6 person; and
7 (b) at the time of the incident, the person was
8 navigating the vessel while under the influence
9 of alcohol, a drug, or alcohol and a drug to such
10 an extent as to be incapable of having proper
11 control of the vessel.
12 Alternative offence for this subsection: subsection (3)
13 or an offence specified in the Table.
14 Table -- Alternative offences
Section no. Section heading
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
15 Penalty for this subsection: imprisonment for 10 years
16 and a fine of any amount.
17 Summary conviction penalty for this subsection:
18 imprisonment for 3 years or a fine of $36 000.
19 (2) A court sentencing a person for an offence against
20 subsection (1) must order that the person is disqualified
21 from holding or obtaining a WA marine qualification
22 as follows --
23 (a) if the person is convicted on indictment -- for a
24 period of not less than 2 years;
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s. 6
1 (b) if the person is convicted summarily -- for a
2 period of not less than 18 months.
3 (3) A person commits a crime if --
4 (a) a vessel navigated by the person is involved in
5 an incident occasioning bodily harm to another
6 person; and
7 (b) at the time of the incident, the person was
8 navigating the vessel in a manner that is
9 dangerous to the public or to any person,
10 having regard to all the circumstances of the
11 case.
12 Alternative offence for this subsection: subsection (1)
13 or an offence specified in the Table.
14 Table -- Alternative offences
Section no. Section heading
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
15 Penalty for this subsection:
16 (a) if the offence is committed in circumstances
17 of aggravation --
18 (i) if the person is convicted on
19 indictment -- imprisonment for
20 10 years or a fine of any amount;
21 (ii) if the person is convicted summarily --
22 imprisonment for 3 years or a fine of
23 $36 000;
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Part 2 Western Australian Marine Act 1982 amended
s. 6
1 (b) otherwise --
2 (i) for a first offence, imprisonment for
3 9 months or a fine of $9 000;
4 (ii) for a second or subsequent offence,
5 imprisonment for 18 months or a fine of
6 $18 000.
7 (4) A court sentencing a person for an offence against
8 subsection (3) must order that the person is disqualified
9 from holding or obtaining a WA marine qualification
10 as follows --
11 (a) if the offence is committed in circumstances of
12 aggravation -- a period of not less than 2 years;
13 (b) otherwise -- a period of not less than
14 12 months.
15 75BC. Careless navigation of vessel occasioning death,
16 grievous bodily harm or bodily harm
17 (1) A person commits an offence if --
18 (a) a vessel navigated by the person is involved in
19 an incident occasioning the death of, or
20 grievous bodily harm or bodily harm to,
21 another person; and
22 (b) at the time of the incident, the person was
23 navigating the vessel without due care and
24 attention.
25 Alternative offence for this subsection: section 75BF
26 (Careless navigation of vessel).
27 Penalty for this subsection: imprisonment for 3 years or
28 a fine of $36 000.
29 (2) A court sentencing a person for an offence against
30 subsection (1) must order that the person is disqualified
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s. 6
1 from holding or obtaining a WA marine qualification
2 for a period of not less than 3 months.
3 Subdivision 2 -- Reckless, dangerous and careless
4 navigation of vessels
5 75BD. Reckless navigation of vessel
6 (1) A person commits an offence if the person wilfully
7 navigates a vessel in a manner that is --
8 (a) inherently dangerous; or
9 (b) dangerous to the public or to any person,
10 having regard to all the circumstances of the
11 case.
12 Penalty for this subsection:
13 (a) for a first offence, a fine of $6 000;
14 (b) for a second offence, a fine of $9 000;
15 (c) for a third or subsequent offence, a fine of
16 $12 000.
17 Alternative offence for this subsection: an offence
18 specified in the Table.
19 Table -- Alternative offences
Section no. Section heading
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
20 (2) If an offence against subsection (1) is committed in the
21 circumstance of aggravation referred to in
22 section 75AF(1)(c), the offence is a crime.
23 Alternative offence for this subsection: an offence
24 specified in the Table.
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s. 6
1 Table -- Alternative offence
Section no. Section heading
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
2 Penalty for this subsection: imprisonment for 5 years.
3 Summary conviction penalty for this subsection:
4 imprisonment for 2 years.
5 (3) A court sentencing a person for an offence against
6 subsection (1) must order that the person is disqualified
7 from holding or obtaining a WA marine qualification
8 as follows --
9 (a) for an offence committed in a circumstance of
10 aggravation --
11 (i) for a first or second offence, for a period
12 of not less than 2 years; or
13 (ii) for a third or subsequent offence,
14 permanently;
15 (b) otherwise --
16 (i) for a first offence, for a period of not
17 less than 6 months; or
18 (ii) for a second offence, for a period of not
19 less than 12 months; or
20 (iii) for a third or subsequent offence,
21 permanently.
22 (4) A police officer may arrest a person for an offence
23 against subsection (1) without a warrant.
24 75BE. Dangerous navigation of vessel
25 (1) A person commits an offence if the person navigates a
26 vessel in a manner that is dangerous to the public or to
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s. 6
1 any person, having regard to all the circumstances of
2 the case.
3 Alternative offence for this subsection: section 75BF
4 (Careless navigation of vessel).
5 Penalty for this subsection:
6 (a) for an offence committed in the circumstance
7 of aggravation referred to in
8 section 75AF(1)(c) -- imprisonment for
9 3 years or a fine of $36 000;
10 (b) otherwise --
11 (i) for a first offence, a fine of $3 000;
12 (ii) for a second or subsequent offence, a
13 fine of $6 000.
14 (2) A court sentencing a person for an offence against
15 subsection (1) must order that the offender is
16 disqualified from holding or obtaining a WA marine
17 qualification as follows --
18 (a) for an offence committed in the circumstance of
19 aggravation referred to in
20 section 75AF(1)(c) -- for a period of not less
21 than 2 years;
22 (b) if paragraph (a) does not apply and the offence
23 is a second or subsequent offence -- for a
24 period of not less than 12 months.
25 (3) In determining whether an offence against
26 subsection (1) is a first, second or subsequent offence,
27 a previous offence against a provision specified in the
28 Table must be taken into account as if it were a
29 previous offence against subsection (1).
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s. 6
1 Table -- Offences
Section no. Section heading
s. 75B(1) or (2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) or (2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) or (3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
2 75BF. Careless navigation of vessel
3 A person commits an offence if the person navigates a
4 vessel without due care and attention.
5 Penalty: a fine of $1 500.
6 Subdivision 3 -- Provisions relating to offences in
7 Subdivisions 1 and 2
8 75BG. Application of Subdivision
9 This Subdivision applies for the purposes of an offence
10 against a provision of Subdivision 1 or 2.
11 75BH. Circumstances occasioning death, grievous bodily
12 harm or bodily harm
13 The circumstances in which a vessel is involved in an
14 incident occasioning the death of, or grievous bodily
15 harm or bodily harm to, a person include circumstances
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s. 6
1 in which the death or harm is occasioned through any
2 of the following --
3 (a) the vessel overturning or running aground
4 while the person is in or on the vessel (whether
5 as a passenger or otherwise);
6 (b) the person falling from the vessel, or being
7 thrown or ejected from the vessel, while in or
8 on the vessel (whether as a passenger or
9 otherwise);
10 (c) an impact between any object or thing and the
11 vessel while the person is in or on the vessel
12 (whether as a passenger or otherwise);
13 (d) an impact between the person and the vessel;
14 (e) an impact between the vessel and another
15 vessel, or an object or thing, while the person is
16 on or near the other vessel, object or thing;
17 (f) an impact between the person and any object on
18 or attached to the vessel;
19 (g) an impact between the person and any object
20 that is in motion having fallen from the vessel;
21 (h) an impact between any object or thing and the
22 person while the person is in or on the vessel
23 (whether as a passenger or otherwise);
24 (i) the vessel causing an impact between other
25 vessels or between another vessel and any
26 object, thing or person;
27 (j) the vessel causing another vessel to overturn or
28 run aground;
29 (k) the vessel causing a person (whether as a
30 passenger or otherwise) in or on another vessel
31 to fall from that other vessel.
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1 75BI. Provisions for offences involving incidents
2 occasioning death, grievous bodily harm or bodily
3 harm
4 (1) This section applies for the purposes of an offence
5 involving an incident that occasioned the death of, or
6 grievous bodily harm or bodily harm to, a person (the
7 casualty).
8 (2) It is immaterial that the death, grievous bodily harm or
9 bodily harm --
10 (a) might have been avoided by proper precaution
11 on the part of a person other than the person
12 charged; or
13 (b) might have been prevented if the casualty
14 received proper care or treatment.
15 (3) The incident is taken to have caused the death of the
16 casualty if --
17 (a) the incident occasions grievous bodily harm to
18 the casualty; and
19 (b) the casualty receives surgical or medical
20 treatment for the harm; and
21 (c) the death results from the harm or the
22 treatment.
23 (4) Subsection (3) applies even though the immediate
24 cause of the casualty's death was the surgical or
25 medical treatment, if the treatment was reasonably
26 proper in the circumstances and provided in good faith.
27 75BJ. Defence: death or harm not attributable to alcohol
28 or drugs
29 (1) This section applies if it is alleged that an offence
30 involving an incident that occasioned the death of, or
31 grievous bodily harm or bodily harm to, a person
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s. 6
1 occurred while the person charged was under the
2 influence of alcohol, a drug, or alcohol and a drug.
3 (2) It is a defence to a charge of the offence for the person
4 charged to prove that the death, grievous bodily harm
5 or bodily harm was not attributable to the fact that the
6 person charged was under the influence of alcohol, the
7 drug, or alcohol and the drug.
8 75BK. Defence: death or harm not attributable to manner
9 of operation or level of care and attention
10 (1) This section applies if it is alleged that an offence
11 involving an incident that occasioned the death of, or
12 grievous bodily harm or bodily harm to, a person
13 occurred while the person charged was navigating the
14 vessel.
15 (2) It is a defence to a charge of the offence for the person
16 charged to prove that the death, grievous bodily harm
17 or bodily harm was not attributable to --
18 (a) the manner in which the person navigated the
19 vessel; or
20 (b) the person's level of care or attention when
21 navigating the vessel.
22 75BL. Defence: inspector or police officer navigating
23 vessel in certain circumstances
24 (1) This section applies if it is alleged that the person
25 charged with an offence navigated a vessel in a manner
26 that was --
27 (a) inherently dangerous; or
28 (b) dangerous to the public or to any person.
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1 (2) It is a defence to a charge of the offence for the person
2 charged to prove that, at the time of the alleged
3 offence --
4 (a) the person was on official duty as an inspector
5 or police officer; and
6 (b) the person navigated the vessel substantially in
7 accordance with --
8 (i) the chief executive officer's or
9 Commissioner of Police's policies and
10 guidelines relating to navigating vessels;
11 and
12 (ii) a direction given under any of those
13 policies or guidelines;
14 and
15 (c) it was reasonable and in the public interest for
16 the person charged to navigate the vessel in that
17 manner, having regard to all of the
18 circumstances of the case.
19 Division 3 -- Navigation of vessels while under the
20 influence of alcohol or drugs or impaired by drugs
21 75C. Navigation of vessel while under influence of alcohol
22 or drugs
23 (1) A person commits an offence if the person navigates,
24 or attempts to operate, a vessel while under the
25 influence of alcohol or a drug to such an extent as to be
26 incapable of having proper control of the vessel.
27 Alternative offence for this subsection: an offence
28 specified in the Table.
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s. 6
1 Table -- Alternative offences
Section no. Section heading
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
2 Penalty for this subsection:
3 (a) for a first offence --
4 (i) if the person has 1 or more previous
5 convictions for a 0.08+ offence -- a fine
6 of not less than $2 400 or more than
7 $3 750;
8 (ii) if the person has 1 or more previous
9 convictions for a 0.08+ and illicit drug
10 offence -- a fine of not less than $2 750
11 or more than $3 750;
12 (iii) if the person has 1 or more previous
13 convictions for a 0.08+ offence and 1 or
14 more previous convictions for a 0.08+
15 and illicit drug offence -- a fine of not
16 less than $2 750 or more than $3 750;
17 (iv) in any other case -- a fine of not less
18 than $2 050 or more than $3 750;
19 (b) for a second offence, imprisonment for
20 9 months or a fine of not less than $3 150 or
21 more than $5 250;
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1 (c) for a third or subsequent offence,
2 imprisonment for 18 months or a fine of not
3 less than $3 150 or more than $7 500.
4 (2) If a person is convicted of an offence against
5 subsection (1), a court sentencing the person must
6 order that the person is disqualified from holding or
7 obtaining a WA marine qualification for not less than
8 the period of disqualification specified in the Table.
9 Table -- Disqualification periods
Disqualification
First offence:
(a) 1 previous conviction for a 0.08+ 18 months
offence
(b) 2 or more previous convictions for 30 months
a 0.08+ offence
(c) 1 previous conviction for a 0.08+ and 27 months
illicit drug offence
(d) 2 or more previous convictions for 42 months
a 0.08+ and illicit drug offence
(e) 1 or more previous convictions for 42 months
a 0.08+ offence and 1 or more
previous convictions for a 0.08+ and
illicit drug offence
(f) any other case 10 months
Second offence 30 months
Subsequent offence Permanent
10 (3) In determining whether an offence against
11 subsection (1) is a first, second or subsequent offence,
12 a previous offence against a provision specified in the
13 Table must be taken into account as if it were an
14 offence against subsection (1).
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s. 6
1 Table -- Offences
Section no. Section heading
s. 75CA(1) Navigation of vessel while under influence
of both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by
drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement:
incident occasioning death, grievous bodily
harm or bodily harm
s. 75HE(1) Failure to comply with requirements
relating to assessment of drug impairment
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
2 (4) A police officer may arrest a person for an offence
3 against subsection (1) without a warrant.
4 (5) The charging of a person for an offence against this
5 section does not limit the operation of sections 75EE,
6 75EF, 75EH, 75EN and 75EO.
7 75CA. Navigation of vessel while under influence of both
8 alcohol and drugs
9 (1) A person commits an offence if the person navigates,
10 or attempts to operate, a vessel while under the
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Part 2 Western Australian Marine Act 1982 amended
s. 6
1 influence of alcohol and a drug to such an extent as to
2 be incapable of having proper control of the vessel.
3 Alternative offence for this subsection: an offence
4 specified in the Table.
5 Table -- Alternative offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
6 Penalty for this subsection:
7 (a) for a first offence --
8 (i) if the person has 1 or more previous
9 convictions for a 0.08+ offence -- a fine
10 of not less than $2 400 or more than
11 $5 650;
12 (ii) if the person has 1 or more previous
13 convictions for a 0.08+ and illicit drug
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Western Australian Marine Act 1982 amended Part 2
s. 6
1 offence -- a fine of not less than $3 600
2 or more than $5 650;
3 (iii) if the person has 1 or more previous
4 convictions for a 0.08+ offence and 1 or
5 more previous convictions for a 0.08+
6 and illicit drug offence -- a fine of not
7 less than $3 600 or more than $5 650;
8 (iv) in any other case -- a fine of not less
9 than $2 050 or more than $5 650;
10 (b) for a second offence, imprisonment for
11 9 months or a fine of not less than $4 750 or
12 more than $7 900;
13 (c) for a third or subsequent offence,
14 imprisonment for 18 months or a fine of not
15 less than $4 750 or more than $11 250.
16 (2) If a person is convicted of an offence against
17 subsection (1), a court sentencing the person must
18 order that the person is disqualified from holding or
19 obtaining a WA marine qualification for not less than
20 the period of disqualification specified in the Table.
21 Table -- Disqualification periods
Disqualification
First offence:
(a) 1 previous conviction for a 0.08+ 18 months
offence
(b) 2 or more previous convictions for 30 months
a 0.08+ offence
(c) 1 previous conviction for a 0.08+ and 27 months
illicit drug offence
(d) 2 or more previous convictions for 42 months
a 0.08+ and illicit drug offence
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Part 2 Western Australian Marine Act 1982 amended
s. 6
(e) 1 or more previous convictions for 42 months
a 0.08+ offence and 1 or more
previous convictions for a 0.08+ and
illicit drug offence
(f) any other case 15 months
Second offence 42 months
Subsequent offence Permanent
1 (3) In determining whether an offence against
2 subsection (1) is a first, second or subsequent offence,
3 a previous offence against a provision specified in the
4 Table must be taken into account as if it were an
5 offence against subsection (1).
6 Table -- Offences
Section no. Section heading
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
7 (4) A police officer may arrest a person for an offence
8 against subsection (1) without a warrant.
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Western Australian Marine Act 1982 amended Part 2
s. 6
1 (5) The charging of a person for an offence against this
2 section does not limit the operation of sections 75EE,
3 75EF, 75EH, 75EN and 75EO.
4 75CB. Defence: under influence of drug prescribed or
5 administered for therapeutic reasons
6 (1) This section applies in relation to an offence against
7 section 75C(1) or 75CA(1) if it is alleged, or it appears
8 on the evidence, that the person charged was under the
9 influence of a particular drug.
10 (2) It is a defence to a charge of the offence for the person
11 charged to prove that --
12 (a) the particular drug was prescribed for, or
13 administered to, the person by a medical
14 practitioner, nurse practitioner or dentist for
15 therapeutic reasons; and
16 (b) the person was not aware, and could not
17 reasonably have been expected to be aware,
18 that the particular drug was likely to affect the
19 person in a way that would be inconsistent with
20 the person being capable of having proper
21 control of a vessel.
22 75CC. Master must not permit person under influence of
23 alcohol or drugs or both to operate vessel
24 The master of a vessel commits an offence if the
25 master --
26 (a) is aware or has reason to suspect that another
27 person is under the influence of alcohol, a drug
28 or alcohol and a drug; and
29 (b) permits the other person to operate the vessel.
30 Penalty: a fine of $3 750.
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s. 6
1 75CD. Navigation of vessel while impaired by drugs
2 (1) A person commits an offence if the person navigates,
3 or attempts to operate, a vessel while the person is
4 impaired by a drug.
5 Alternative offence for this subsection: an offence
6 specified in the Table.
7 Table -- Alternative offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
8 Penalty for this subsection:
9 (a) for a first offence, a fine of not less than
10 $1 700 or more than $3 750;
11 (b) for a second offence, imprisonment for
12 9 months or a fine of not less than $3 150 or
13 more than $5 250;
14 (c) for a third or subsequent offence,
15 imprisonment for 18 months or a fine of not
16 less than $3 150 or more than $7 500.
17 (2) A court sentencing a person for an offence against
18 subsection (1) must order that the person is disqualified
19 from holding or obtaining a WA marine qualification
20 as follows --
21 (a) for a first offence, for a period of not less than
22 10 months;
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Western Australian Marine Act 1982 amended Part 2
s. 6
1 (b) for a second offence, for a period of not less
2 than 30 months;
3 (c) for a third or subsequent offence, permanently.
4 (3) In determining whether an offence against
5 subsection (1) is a first, second or subsequent offence,
6 a previous offence against a provision specified in the
7 Table must be taken into account as if it were an
8 offence against subsection (1).
9 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, greivous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
10 (4) A police officer may arrest a person for an offence
11 against subsection (1) without a warrant.
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s. 6
1 75CE. When person may be convicted of navigation of
2 vessel while impaired by drugs offence
3 A person may be convicted of an offence against
4 section 75CD(1) if the prosecutor proves that --
5 (a) the person navigated, or attempted to operate, a
6 vessel; and
7 (b) at the time of the navigation or attempted
8 operation of the vessel, 1 or more drugs were
9 present in the person's body; and
10 (c) the person's behaviour, condition or appearance
11 was consistent with the behaviour, condition or
12 appearance associated with a person who has
13 consumed or used that drug or combination of
14 drugs; and
15 (d) the behaviour or condition associated with a
16 person who has consumed or used that drug or
17 combination of drugs would be inconsistent
18 with the person being capable of having proper
19 control of a vessel.
20 75CF. Defence: impaired by drug prescribed or
21 administered for therapeutic reasons
22 (1) This section applies in relation to an offence against
23 section 75CD(1) if it is alleged, or it appears on the
24 evidence, that the person charged was impaired by 1 or
25 more drugs.
26 (2) It is a defence to a charge of the offence for the person
27 charged to prove that --
28 (a) the drug, or each drug, was prescribed for, or
29 administered to, the person charged by a
30 medical practitioner, nurse practitioner or
31 dentist for therapeutic reasons; and
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s. 6
1 (b) if the person charged received the drug, or 1 of
2 the drugs, in packaged form -- the packaging
3 did not include a label advising that the drug
4 was likely to affect a person in a way that
5 would be inconsistent with the person being
6 capable of having proper control of a vessel;
7 and
8 (c) the person charged was not aware, and could
9 not reasonably have been expected to be aware,
10 that the drug or combination of drugs were
11 likely to affect the person in a way that would
12 be inconsistent with the person being capable of
13 having proper control of a vessel.
14 (3) This section has effect despite section 75CE.
15 75CG. Rights of person charged with particular offences
16 (1) This section applies if --
17 (a) a person is charged with an offence against
18 section 75C(1), 75CA(1) or 75CD(1); and
19 (b) a sample of the person's blood was not taken
20 under an alcohol or drug testing requirement
21 before the person was charged.
22 (2) The person has the right to be examined by a medical
23 practitioner nominated by them, if one is available, for
24 the purpose of arranging for a sample of the person's
25 blood to be taken.
26 (3) An inspector or police officer must --
27 (a) inform the person charged of this right; and
28 (b) make every reasonable effort to afford the
29 person charged this right.
30
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Part 2 Western Australian Marine Act 1982 amended
s. 6
1 (2) At the end of Part 3A (as inserted by subsection (1)) insert:
2
3 Division 4 -- Navigation of vessels with particular BAC
4 or prescribed illicit drug present
5 75D. Navigation of vessel while BAC is 0.05 or above
6 (1) A person commits an offence if the person navigates,
7 or attempts to operate, a vessel while the person's BAC
8 is 0.05 g or above.
9 (2) If a person is convicted of an offence against
10 subsection (1) --
11 (a) the person is liable to a penalty of a fine of not
12 less than the minimum fine or more than the
13 maximum fine specified in the Table; and
14 (b) a court sentencing the person must order that
15 the person is disqualified from holding or
16 obtaining a WA marine qualification for not
17 less than the period of disqualification specified
18 in the Table.
19 Table -- Penalties and disqualification
BAC First Second Third or
offence offence subsequent
offence
≥ 0.05 g Min: $1 250 $1 250
but < Max: $1 250 $2 000 $2 000
0.07 g Disq: 6 months 8 months
≥ 0.07 g Min: $1 500 $1 500
Max: $1 250 $2 000 $2 000
Disq: 8 months 10 months
20 Note for this Table:
21 ≥ signifies of or more than
22 < signifies less than
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 Disq signifies the minimum period of disqualification
2 Max signifies the maximum fine
3 Min signifies the minimum fine
4 (3) In determining whether an offence against
5 subsection (1) is a first, second or subsequent
6 offence --
7 (a) a previous offence against subsection (1) is to
8 be taken into account regardless of the person's
9 BAC when committing the previous offence;
10 and
11 (b) a previous offence against a provision specified
12 in the Table must be taken into account as if it
13 were a previous offence against subsection (1).
14 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
Section no. Section heading
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 75DA. Navigation of vessel while BAC is 0.08 or above
2 (1) A person commits an offence if the person navigates,
3 or attempts to operate, a vessel while the person's BAC
4 is 0.08 g or above.
5 Alternative offence for this subsection: 75D(1)
6 (Navigation of vessel while BAC is 0.05 or above).
7 (2) If a person is convicted of an offence against
8 subsection (1) --
9 (a) the person is liable to a penalty of a fine of not
10 less than the minimum fine or more than the
11 maximum fine specified in the Table; and
12 (b) a court sentencing the person must order that
13 the person is disqualified from holding or
14 obtaining a WA marine qualification for not
15 less than the period of disqualification specified
16 in the Table.
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Western Australian Marine Act 1982 amended Part 2
s. 6
1 Table -- Penalties and disqualification
BAC First Second Third or
offence offence subsequent
offence
≥ 0.08 g Min: $750 $1 600 $1 600
but < Max: $2 250 $2 250 $2 250
0.09 g Disq: 6 months 8 months 10 months
≥ 0.09 g Min: $850 $1 700 $1 700
but < Max: $2 250 $2 250 $2 250
0.11 g Disq: 7 months 10 months 13 months
≥ 0.11 g Min: $1 000 $1 800 $1 800
but < Max: $2 250 $3 000 $3 000
0.13 g Disq: 8 months 14 months 17 months
≥ 0.13 g Min: $1 150 $2 400 $2 400
Max: $2 250 $3 750 $4 500
Disq: 9 months 18 months 30 months
2 Note for this Table:
3 ≥ signifies of or more than
4 < signifies less than
5 Disq signifies the minimum period of disqualification
6 Max signifies the maximum fine
7 Min signifies the minimum fine
8 (3) In determining whether an offence against
9 subsection (1) is a first, second or subsequent
10 offence --
11 (a) a previous offence against subsection (1) is to
12 be taken into account regardless of the person's
13 BAC when committing the previous offence;
14 and
15 (b) a previous offence against a provision specified
16 in the Table must be taken into account as if it
17 were an offence against subsection (1).
page 39
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
2 (4) A police officer may arrest a person for an offence
3 against subsection (1) without a warrant.
4 75DB. Navigation of vessel while prescribed illicit drug
5 present
6 (1) A person commits an offence if the person navigates,
7 or attempts to operate, a vessel while a prescribed illicit
8 drug is present in the person's body.
9 Penalty for this subsection:
10 (a) for a first offence, a fine of $1 250;
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 (b) for a second or subsequent offence, a fine of
2 not less than $1 250 or more than $2 000.
3 (2) A court sentencing a person for a second or subsequent
4 offence against subsection (1) must order that the
5 person is disqualified from holding or obtaining a WA
6 marine qualification for a period of not less than
7 6 months.
8 (3) In determining whether an offence against
9 subsection (1) is a first, second or subsequent offence,
10 a previous offence against a provision specified in the
11 Table must be taken into account as if it were an
12 offence against subsection (1).
13 Table -- Offences
Section no. Section heading
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 75DC. Navigation of vessel while BAC is 0.05 or above and
4 prescribed illicit drug present
5 (1) A person commits an offence if the person navigates,
6 or attempts to operate a vessel while --
7 (a) the person's BAC is 0.05 g or above; and
8 (b) a prescribed illicit drug is present in the
9 person's body.
10 Alternative offence for this subsection: an offence
11 specified in the Table.
12 Table -- Alternative offences
Section no. Section heading
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
13 (2) If a person is convicted of an offence against
14 subsection (1) --
15 (a) the person is liable to a penalty of a fine of not
16 less than the minimum fine or more than the
17 maximum fine specified in the Table; and
18 (b) a court sentencing the person must order that
19 the person is disqualified from holding or
20 obtaining a WA marine qualification for not
21 less than the period of disqualification specified
22 in the Table.
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 Table -- Penalties and disqualification
BAC First Second Third or
offence offence subsequent
offence
≥ 0.05 g Min: $1 900 $1 900
but Max: $1 900 $3 000 $3 000
< 0.07 g Disq: 3 months 9 months 12 months
≥ 0.07 g Min: $2 250 $2 250
Max: $1 900 $3 000 $3 000
Disq: 3 months 12 months 15 months
2 Note for this Table:
3 ≥ signifies of or more than
4 < signifies less than
5 Disq signifies the minimum period of disqualification
6 Max signifies the maximum fine
7 Min signifies the minimum fine
8 (3) In determining whether an offence against
9 subsection (1) is a first, second or subsequent
10 offence --
11 (a) a previous offence against subsection (1) is to
12 be taken into account regardless of the person's
13 BAC when committing the previous offence;
14 and
15 (b) a previous offence against a provision specified
16 in the Table must be taken into account as if it
17 were an offence against subsection (1).
18 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
Section no. Section heading
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
Section no. Section heading
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 75DD. Navigation of vessel while BAC is 0.08 or above and
4 prescribed illicit drug present
5 (1) A person commits an offence if the person navigates,
6 or attempts to operate, a vessel while --
7 (a) the person's BAC is 0.08 g or above; and
8 (b) a prescribed illicit drug is present in the
9 person's body.
10 Alternative offence for this subsection: an offence
11 specified in the Table.
12 Table -- Alternative offences
Section no. Section heading
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
Section no. Section heading
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
1 (2) If a person is convicted of an offence against
2 subsection (1) --
3 (a) the person is liable to a penalty of a fine of not
4 less than the minimum fine or more than the
5 maximum fine specified in the Table; and
6 (b) a court sentencing the person must order that
7 the person is disqualified from holding or
8 obtaining a WA marine qualification for not
9 less than the period of disqualification specified
10 in the Table.
11 Table -- Penalties and disqualification
BAC First Second Third or
offence offence subsequent
offence
≥ 0.08 g Min: $1 150 $2 400 $2 400
but Max: $3 400 $3 400 $3 400
< 0.09 g Disq: 9 months 12 months 15 months
≥ 0.09 g Min: $1 300 $2 550 $2 550
but Max: $3 400 $3 400 $3 400
< 0.11 g Disq: 11 months 15 months 20 months
≥ 0.11 g Min: $1 500 $2 700 $2 700
but Max: $3 400 $4 500 $4 500
< 0.13 g Disq: 12 months 21 months 26 months
≥ 0.13 g Min: $1 750 $3 600 $3 600
Max: $3 400 $5 650 $6 750
Disq: 14 months 27 months 42 months
12 Note for this Table:
13 ≥ signifies of or more than
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 6
1 < signifies less than
2 Disq signifies the minimum period of disqualification
3 Max signifies the maximum fine
4 Min signifies the minimum fine
5 (3) In determining whether an offence against
6 subsection (1) is a first, second or subsequent
7 offence --
8 (a) a previous offence against subsection (1) is to
9 be taken into account regardless of the person's
10 BAC when committing the previous offence;
11 and
12 (b) a previous offence against a provision specified
13 in the Table must be taken into account as if it
14 were an offence against subsection (1).
15 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 6
Section no. Section heading
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 75DE. Mistaken belief about prescribed illicit drug is not
4 defence
5 It is not a defence to a charge of an offence against
6 section 75DB(1), 75DC(1) or 75DD(1) that the person
7 charged took a prescribed illicit drug mistakenly
8 believing it to be another drug if that other drug is
9 also --
10 (a) a drug to which the Misuse of Drugs Act 1981
11 applies; or
12 (b) a Schedule 4 poison as defined in the Medicines
13 and Poisons Act 2014 section 3.
14
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 7
1 7. Part 3B inserted
2 After Part 3A (as inserted by section 6 of this Act) insert:
3
4 Part 3B -- Testing for alcohol and drugs
5 Division 1 -- Preliminary
6 75E. Terms used
7 (1) In this Part --
8 authorised drug tester has the meaning given in
9 section 75EB(1);
10 authorised operator has the meaning given in
11 section 75EA(1);
12 breath analysing equipment means --
13 (a) breath analysing equipment as defined in the
14 Road Traffic Act 1974 section 65; or
15 (b) a device of a type approved under
16 section 75JA(b);
17 breath analysis means the analysis of a sample of a
18 person's breath to determine the person's BAC using
19 breath analysing equipment;
20 drug testing means testing a sample of a person's oral
21 fluid for the presence of a prescribed illicit drug using a
22 drug testing device;
23 drug testing device means --
24 (a) an approved device as defined in the Road
25 Traffic Act 1974 section 65; or
26 (b) a device of a type approved under
27 section 75JA(d);
28 hospital has the meaning given in the Health Services
29 Act 2016 section 8(4);
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 7
1 involved, for a vessel in relation to an incident, has the
2 meaning given in section 75AB;
3 navigate, a vessel, has the meaning given in
4 section 75AA(2);
5 operate, a vessel, has the meaning given in
6 section 75AA(1);
7 preliminary breath test means --
8 (a) a preliminary test as defined in the Road Traffic
9 Act 1974 section 65; or
10 (b) a test of a sample of a person's breath using a
11 preliminary breath testing device;
12 preliminary breath testing device means --
13 (a) an apparatus of a type referred to in the
14 definition of preliminary test in the Road
15 Traffic Act 1974 section 65; or
16 (b) a device of a type approved under
17 section 75JA(a);
18 preliminary oral fluid test means a test of a sample of
19 a person's oral fluid using a preliminary oral fluid
20 testing device;
21 preliminary oral fluid testing device means --
22 (a) a device of a type referred to in the definition of
23 preliminary oral fluid test as that term is
24 defined in the Road Traffic Act 1974
25 section 65; or
26 (b) a device of a type approved under
27 section 75JA(c);
28 prescribed sample taker means --
29 (a) a medical practitioner; or
30 (b) a registered nurse; or
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 7
1 (c) a prescribed person who is appropriately
2 qualified to take samples for testing in relation
3 to alcohol or drugs;
4 registered nurse means a person --
5 (a) registered under the Health Practitioner
6 Regulation National Law (Western Australia)
7 in the nursing profession; and
8 (b) whose name is entered on Division 1 of the
9 Register of Nurses kept under that Law;
10 stop, in relation to a vessel, includes --
11 (a) stop the vessel's motor; and
12 (b) drop the vessel's anchor; and
13 (c) fasten the vessel to a mooring, wharf or jetty.
14 (2) For the purposes of this Part, anything done by a
15 person acting under the supervision or direction of an
16 analyst, a drugs analyst, a medical practitioner or a
17 prescribed sample taker is taken to have been done by
18 the analyst, drugs analyst, medical practitioner or
19 prescribed sample taker (as the case requires).
20 75EA. Authorised operators for operating breath
21 analysing equipment
22 (1) An authorised operator is --
23 (a) an authorised person as defined in the Road
24 Traffic Act 1974 section 65; or
25 (b) a police officer certified by the Commissioner
26 of Police under subsection (2); or
27 (c) an inspector certified by the chief executive
28 officer under subsection (3).
29 (2) The Commissioner of Police may certify that a police
30 officer is competent to operate breath analysing
31 equipment.
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Part 2 Western Australian Marine Act 1982 amended
s. 7
1 (3) The chief executive officer may certify that an
2 inspector is competent to operate breath analysing
3 equipment.
4 75EB. Authorised drug testers for operating drug testing
5 devices
6 (1) An authorised drug tester is --
7 (a) an authorised drug tester as defined in the Road
8 Traffic Act 1974 section 65; or
9 (b) a police officer certified by the Commissioner
10 of Police under subsection (2); or
11 (c) an inspector certified by the chief executive
12 officer under subsection (3).
13 (2) The Commissioner of Police may certify that a police
14 officer is competent to operate a drug testing device.
15 (3) The chief executive officer may certify that an
16 inspector is competent to operate a device.
17 75EC. Using breath sample to work out BAC
18 (1) A concentration of alcohol in a person's breath of a
19 number of grams per 210 L of breath is taken to be a
20 concentration in the person's blood of that number of
21 grams of alcohol per 100 mL of blood.
22 (2) Breath analysing equipment is taken to be a device that
23 determines a person's BAC by analysing a sample of
24 the person's breath, whether the device --
25 (a) gives the BAC directly; or
26 (b) allows the BAC to be worked out under
27 subsection (1).
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Western Australian Marine Act 1982 amended Part 2
s. 7
1 (3) A device used to conduct a preliminary breath test is
2 taken to be a device that indicates a person's BAC, or
3 indicates whether or not the person has a BAC of or
4 above a particular level, whether the device --
5 (a) gives the indication directly; or
6 (b) allows the BAC to be worked out under
7 subsection (1).
8 75ED. Powers additional to other powers
9 A power of an inspector or police officer under this
10 Part is additional to, and does not limit, any other
11 power the inspector or police officer may have under
12 this Act or another written law.
13 Division 2 -- Testing for alcohol
14 Subdivision 1 -- Preliminary breath tests
15 75EE. General power to require breath sample for
16 preliminary breath test
17 (1) An inspector or police officer may require a person to
18 provide a sample of breath for a preliminary breath test
19 if the inspector or police officer believes on reasonable
20 grounds that the person is or was --
21 (a) navigating or attempting to operate a vessel; or
22 (b) the master of a vessel.
23 (2) The inspector or police officer must conduct a
24 preliminary breath test of the person.
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s. 7
1 75EF. Power to require breath sample for preliminary
2 breath test following incident
3 (1) This section applies if a vessel is involved in an
4 incident occasioning injury to a person or damage to
5 property and an inspector or police officer --
6 (a) does not know, or has doubt about, who was
7 navigating the vessel at the time of the incident;
8 and
9 (b) believes on reasonable grounds that the person
10 may have been navigating the vessel at that
11 time.
12 (2) The inspector or police officer may require the person
13 to provide a sample of breath for a preliminary breath
14 test.
15 (3) The inspector or police officer must conduct a
16 preliminary breath test of the person.
17 75EG. Compliance with requirement
18 A person must comply with a requirement imposed on
19 the person under section 75EE or 75EF by providing a
20 sample of the person's breath in accordance with the
21 directions of the inspector or police officer.
22 Subdivision 2 -- Breath analysis or blood samples following
23 preliminary breath test or commission of certain offences
24 75EH. Power to require breath or blood sample following
25 requirement for preliminary breath test
26 (1) This section applies if --
27 (a) an inspector or police officer requires a person
28 to provide a sample of breath for a preliminary
29 breath test under section 75EE or 75EF; and
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s. 7
1 (b) either --
2 (i) the person's preliminary breath test
3 indicates they have a BAC of 0.05 g or
4 above; or
5 (ii) the person fails to comply with the
6 requirement.
7 (2) This section also applies if --
8 (a) an inspector or police officer has power to
9 require a person to provide a sample of breath
10 for a preliminary breath test under section 75EE
11 or 75EF; and
12 (b) it appears to the inspector or police officer that
13 the person may be incapable of complying with
14 the requirement because of the person's
15 physical condition.
16 (3) An inspector or police officer may require a person --
17 (a) to provide a sample of breath for breath
18 analysis; or
19 (b) to allow a prescribed sample taker to take a
20 sample of the person's blood for analysis.
21 (4) If a requirement to provide a sample of breath for
22 breath analysis is imposed on a person under
23 subsection (3)(a), an inspector or police officer who is
24 an authorised operator must conduct a breath analysis
25 of the person.
26 (5) A sample of a person's blood taken in accordance with
27 a requirement under this section may be analysed in
28 relation to drugs in addition to being analysed for the
29 presence of alcohol or to determine the person's BAC.
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Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 7
1 75EI. Power to require breath or blood sample for
2 analysis following commission of certain offences
3 (1) This section applies if an inspector or police officer
4 believes on reasonable grounds that a person has
5 committed an offence against section 75C(1)
6 or 75CA(1).
7 (2) This section also applies if an inspector or police
8 officer --
9 (a) believes on reasonable grounds that a vessel
10 was involved in either --
11 (i) the commission of an offence against
12 section 75B(1) or (2), 75BA(1) or (2) or
13 75BB(1) or (3); or
14 (ii) an incident occasioning injury to a
15 person or damage to property;
16 and
17 (b) does not know, or has doubt about, who was
18 navigating the vessel at the time of the offence
19 or incident; and
20 (c) believes on reasonable grounds that the person
21 may have been navigating the vessel at that
22 time.
23 (3) The inspector or police officer may require the
24 person --
25 (a) to provide a sample of breath for breath
26 analysis; or
27 (b) to allow a prescribed sample taker to take a
28 sample of the person's blood for analysis.
29 (4) If a requirement to provide a sample of breath for
30 breath analysis is imposed on a person under
31 subsection (3)(a), an inspector or police officer who is
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Western Australian Marine Amendment Bill 2023
Western Australian Marine Act 1982 amended Part 2
s. 7
1 an authorised operator must conduct a breath analysis
2 of the person.
3 (5) A sample of a person's blood taken in accordance with
4 a requirement under this section may be analysed in
5 relation to drugs in addition to being analysed for the
6 presence of alcohol or to determine the person's BAC.
7 75EJ. Compliance with requirement
8 (1) A person must comply with a requirement imposed on
9 the person under section 75EH or 75EI to provide a
10 sample of breath for breath analysis by providing the
11 sample in accordance with the directions of the
12 authorised officer conducting the breath analysis.
13 (2) A person must comply with a requirement imposed on
14 the person under section 75EH or 75EI to allow a
15 prescribed sample taker to take a sample of the
16 person's blood for analysis by --
17 (a) allowing a prescribed sample taker nominated
18 by the inspector or police officer to take the
19 sample; and
20 (b) complying with the directions of the sample
21 taker.
22 75EK. Further sample of breath for breath analysis
23 (1) This section applies if --
24 (a) a person provides a sample of breath for breath
25 analysis in accordance with a requirement
26 imposed under section 75EH or 75EI; and
27 (b) breath analysis of the sample fails.
28 (2) An inspector or police officer may require the person to
29 provide 1 additional breath sample for breath analysis
30 under section 75EH or 75EI.
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Part 2 Western Australian Marine Act 1982 amended
s. 7
1 (3) If the person provides 2 breath samples for analysis
2 under section 75EH or 75EI and the analysis of each
3 sample fails, the person cannot be required to provide
4 another sample of breath for analysis under those
5 sections.
6 (4) An analysis of a sample of breath is taken to have
7 failed only if the breath analysing equipment used for
8 the analysis does not indicate a result in the prescribed
9 manner.
10 75EL. When inspector or police officer must not impose
11 testing requirement because of physical incapacity
12 (1) This section applies if it appears to an inspector or
13 police officer that, because of a person's physical
14 condition, the person is incapable of providing a
15 sample of breath that is sufficient for breath analysing
16 equipment to operate.
17 (2) The inspector or police officer must not require the
18 person to provide a sample of breath for a breath
19 analysis under section 75EH or 75EI.
20 75EM. Breath analysis indicates BAC of 0.05 or above
21 (1) This section applies if a breath analysis indicates a
22 person has a BAC of 0.05 g or above.
23 (2) The authorised operator who operated the breath
24 analysing equipment used for the breath analysis must
25 immediately give the person a written statement, or a
26 statement printed by the instrument, that includes all of
27 the following information --
28 (a) the date and time the breath sample was taken;
29 (b) the date and time the sample was analysed;
30 (c) the result of the analysis.
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Western Australian Marine Amendment Bill 2023
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1 (3) If the breath analysing equipment indicates a result in
2 the prescribed manner at the conclusion of the analysis,
3 the result indicated by the breath analysing equipment
4 is taken to be the person's BAC at the time the sample
5 of breath was provided.
6 Subdivision 3 -- Blood samples in other circumstances
7 including following serious incident
8 75EN. Power to require blood sample in other
9 circumstances
10 (1) This section applies if an inspector or police officer has
11 power to require a person to provide a sample of breath
12 for breath analysis under section 75EH or 75EI and
13 either --
14 (a) the inspector or police officer is prevented by
15 section 75EK(3) from imposing the
16 requirement; or
17 (b) it appears to the inspector or police officer that
18 the person may be incapable of complying with
19 the requirement because of the person's
20 physical condition.
21 (2) This section also applies if an inspector or police
22 officer requires a person to provide a sample of breath
23 for breath analysis under section 75EH or 75EI and
24 either --
25 (a) the breath analysis indicates there is no alcohol
26 present in the person's blood; or
27 (b) both of the following apply --
28 (i) the person's behaviour, condition or
29 appearance is consistent with that of a
30 person who is under the influence of
31 alcohol or something else;
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1 (ii) the breath analysis indicates a BAC that
2 does not reasonably explain the person's
3 behaviour, condition or appearance.
4 (3) The inspector or police officer may require the person
5 to allow a prescribed sample taker to take a sample of
6 the person's blood for analysis.
7 (4) If it appears to the inspector or police officer that the
8 person's physical condition renders them incapable of
9 complying with the requirement, the inspector or police
10 officer may cause a prescribed sample taker nominated
11 by the inspector or police officer to take a sample of
12 the person's blood for analysis.
13 (5) A sample of a person's blood taken in accordance with
14 a requirement under this section may be analysed in
15 relation to drugs in addition to being analysed for the
16 presence of alcohol or to determine the person's BAC.
17 75EO. Power to require blood sample following incident
18 occasioning death or serious bodily harm
19 (1) This section applies if an inspector or police officer
20 believes on reasonable grounds that --
21 (a) a vessel is involved in an incident occasioning
22 the death of, or grievous bodily harm or serious
23 bodily harm to, a person; and
24 (b) at the time of the incident, a person is or was --
25 (i) navigating, or attempting to operate, the
26 vessel; or
27 (ii) the master of the vessel.
28 (2) The inspector or police officer may require the person
29 to allow a prescribed sample taker to take a sample of
30 the person's blood for analysis.
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1 (3) If it appears to the inspector or police officer that the
2 person's physical condition renders them incapable of
3 complying with the requirement, the inspector or police
4 officer may cause a prescribed sample taker nominated
5 by the inspector or police officer to take a sample of
6 the person's blood for analysis.
7 (4) A sample of a person's blood taken in accordance with
8 a requirement under this section may be analysed in
9 relation to drugs in addition to being analysed for the
10 presence of alcohol or to determine the person's BAC.
11 (5) For the purposes of subsection (1)(a), serious bodily
12 harm to a person is bodily harm to a person, other than
13 grievous bodily harm, that an inspector or police
14 officer believes on reasonable grounds is likely to
15 require treatment at a hospital, whether or not treatment
16 at a hospital is practicable.
17 75EP. When inspector or police officer must not require
18 blood sample to be taken
19 If an incident referred to in section 75EO(1)(a) occurs,
20 an inspector or police officer must not require or cause
21 a sample of a person's blood to be taken under that
22 section in relation to the incident if it appears to the
23 inspector or police officer that the sample cannot be
24 taken within 12 hours after the incident occurred.
25 75EQ. Compliance with requirement
26 A person must comply with a requirement imposed on
27 the person under section 75EN or 75EO to allow a
28 prescribed sample taker to take a sample of the
29 person's blood for analysis by --
30 (a) allowing a prescribed sample taker nominated
31 by the inspector or police officer to take the
32 sample; and
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1 (b) complying with the directions of the sample
2 taker.
3 Division 3 -- Testing for drugs
4 Subdivision 1 -- Preliminary oral fluid tests
5 75F. General power to require oral fluid sample for
6 preliminary oral fluid test
7 (1) An inspector or police officer may require a person to
8 provide a sample of oral fluid for a preliminary oral
9 fluid test if the inspector or police officer believes on
10 reasonable grounds that the person is or was --
11 (a) navigating or attempting to operate a vessel; or
12 (b) the master of a vessel.
13 (2) The inspector or police officer must conduct a
14 preliminary oral fluid test of the person in accordance
15 with the prescribed procedure.
16 75FA. Powers to require oral fluid samples for
17 preliminary oral fluid tests
18 (1) This section applies if a vessel is involved in an
19 incident occasioning injury to a person or damage to
20 property and an inspector or police officer --
21 (a) does not know, or has doubt about, who was
22 navigating the vessel at the time of the incident;
23 and
24 (b) believes on reasonable grounds that a person
25 may have been navigating the vessel at that
26 time.
27 (2) The inspector or police officer may require the person
28 to provide a sample of oral fluid for a preliminary oral
29 fluid test.
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1 (3) The inspector or police officer must conduct a
2 preliminary oral fluid test of the person in accordance
3 with the prescribed procedure.
4 75FB. Compliance with requirement
5 A person must comply with a requirement imposed on
6 the person under section 75F or 75FA by providing a
7 sample of the person's oral fluid for a preliminary oral
8 fluid test in accordance with the directions of the
9 inspector or police officer.
10 Subdivision 2 -- Drug testing and blood samples
11 75FC. Power to require oral fluid sample for drug testing
12 following preliminary oral fluid test
13 (1) This section applies if an inspector or police officer
14 requires a person to provide a sample of oral fluid for a
15 preliminary oral fluid test under section 75F or 75FA
16 and either --
17 (a) the preliminary oral fluid test indicates a
18 sample of the person's oral fluid contains a
19 prescribed illicit drug; or
20 (b) the person refuses or fails to comply with the
21 requirement.
22 (2) The inspector or police officer may require the person
23 to provide a sample of oral fluid for drug testing.
24 (3) An inspector or police officer who is an authorised
25 drug tester must conduct drug testing of the person
26 by --
27 (a) collecting a sample of the person's oral fluid in
28 the prescribed manner; and
29 (b) conducting the drug testing in accordance with
30 the prescribed procedure.
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1 75FD. Further sample of oral fluid for drug testing
2 (1) This section applies if --
3 (a) a person provides a sample of oral fluid in
4 accordance with a requirement imposed on the
5 person under section 75FC; and
6 (b) the drug testing of the sample using a drug
7 testing device fails.
8 (2) An inspector or police officer may require the person to
9 provide 1 additional sample of oral fluid for drug
10 testing under section 75FC.
11 (3) If the person has provided 2 samples of oral fluid for
12 drug testing under section 75FC and the drug testing of
13 each sample using a drug testing device fails, the
14 person cannot be required to provide another sample of
15 oral fluid for drug testing under that section.
16 (4) For the purposes of this section, the drug testing of a
17 sample of oral fluid is taken to have failed only if the
18 drug testing device used for the drug testing --
19 (a) is not in proper working order; or
20 (b) does not indicate a positive or negative result.
21 75FE. When inspector or police officer must not impose
22 testing requirement because of physical incapacity
23 (1) This section applies if appears to an inspector or police
24 officer that, because of a person's physical condition,
25 the person is incapable of providing a sample of oral
26 fluid that is sufficient for a drug testing device to
27 operate.
28 (2) The inspector or police officer must not require the
29 person to provide a sample of oral fluid for drug testing
30 under section 75FC.
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1 75FF. Power to require blood sample instead of oral fluid
2 sample
3 (1) This section applies if --
4 (a) an inspector or police officer has power to
5 require a person to provide a sample of oral
6 fluid for drug testing under section 75FC; and
7 (b) it appears to the inspector or police officer that
8 the person may be incapable of complying with
9 the requirement because of the person's
10 physical condition.
11 (2) The inspector or police officer may require the person
12 to allow a prescribed sample taker to take a sample of
13 the person's blood for analysis.
14 (3) If it appears to the inspector or police officer that the
15 person's physical condition renders them incapable of
16 complying with the requirement, the inspector or police
17 officer may cause a prescribed sample taker nominated
18 by the inspector or police officer to take a sample of a
19 person's blood for analysis.
20 (4) A sample of a person's blood taken in accordance with
21 a requirement under this section may be analysed for
22 the presence of alcohol or to determine the person's
23 BAC in addition to being analysed in relation to drugs.
24 75FG. Compliance with requirement
25 (1) A person must comply with a requirement imposed on
26 the person under section 75FC to provide an oral fluid
27 sample for drug testing by providing the sample in
28 accordance with the directions of an authorised drug
29 tester.
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1 (2) A person must comply with a requirement imposed on
2 the person under section 75FF to allow a blood sample
3 to be taken by a prescribed sample taker by --
4 (a) allowing a prescribed sample taker nominated
5 by the inspector or police officer to take the
6 sample; and
7 (b) complying with the directions of the sample
8 taker.
9 Subdivision 3 -- Assessment of drug impairment and related
10 provisions
11 75FH. Assessments of drug impairment
12 (1) This section applies if an inspector or police officer
13 believes on reasonable grounds that a person is or was
14 navigating, or attempting to operate, a vessel while
15 impaired by something (other than only alcohol)
16 affecting the person's capacity to navigate the vessel.
17 (2) This section also applies if a vessel is involved in an
18 incident occasioning injury to a person or damage to
19 property and an inspector or police officer --
20 (a) does not know, or has doubt about, who was
21 navigating, or attempting to operate, the vessel
22 at the time of the incident; and
23 (b) believes on reasonable grounds that a person --
24 (i) may have been navigating, or
25 attempting to operate, the vessel at the
26 time of the incident; and
27 (ii) was impaired by something (other than
28 only alcohol) affecting the person's
29 capacity to navigate a vessel.
30 (3) The inspector or police officer may require the person
31 to undergo an assessment of drug impairment.
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1 (4) An inspector or police officer must conduct an
2 assessment of drug impairment of the person in
3 accordance with the prescribed procedure for
4 conducting the assessment.
5 75FI. When inspector or police officer must not impose
6 testing requirement because of physical incapacity
7 (1) This section applies if it appears to an inspector or
8 police officer that, because of a person's physical
9 condition, the person is incapable of undergoing an
10 assessment of drug impairment.
11 (2) The inspector or police officer must not require the
12 person to undergo an assessment of drug impairment
13 under section 75FH.
14 75FJ. Power to require blood samples for drug analysis
15 (1) This section applies if an inspector or police officer --
16 (a) requires a person to undergo an assessment of
17 drug impairment under section 75FH and
18 either --
19 (i) it appears to the inspector or police
20 officer that the assessment indicates the
21 person is impaired by a drug; or
22 (ii) the person fails to comply with the
23 requirement;
24 or
25 (b) is prevented by section 75FI from requiring a
26 person to undergo an assessment of drug
27 impairment because of the person's physical
28 condition.
29 (2) The inspector or police officer may require the person
30 to allow a prescribed sample taker to take a sample of
31 the person's blood for analysis.
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1 (3) If it appears to the inspector or police officer that the
2 person's physical condition renders them incapable of
3 complying with the requirement, the inspector or police
4 officer may cause a prescribed sample taker nominated
5 by the inspector or police officer to take a sample of a
6 person's blood for analysis.
7 (4) A sample of a person's blood taken in accordance with
8 a requirement under this section may be analysed for
9 the presence of alcohol or to determine the person's
10 BAC in addition to being analysed in relation to drugs.
11 75FK. Compliance with requirement
12 (1) A person must comply with a requirement imposed on
13 the person under section 75FH to undergo an
14 assessment of drug impairment by undergoing the
15 assessment in accordance with the directions of the
16 inspector or police officer.
17 (2) A person must comply with a requirement imposed on
18 the person under section 75FJ to allow a prescribed
19 sample taker to take a sample of the person's blood for
20 analysis by --
21 (a) allowing a prescribed sample taker nominated
22 by the inspector or police officer to take the
23 sample; and
24 (b) complying with the directions of the sample
25 taker.
26 Division 4 -- Enforcement powers relating to testing for
27 alcohol and drugs
28 75G. Requirement to leave vessel, accompany inspector
29 or police officer to place or wait at place
30 (1) An inspector or police officer may require a person to
31 leave a vessel, accompany an inspector or police
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1 officer to a specified place or wait at a specified place
2 for any of the following purposes --
3 (a) to impose an alcohol or drug testing
4 requirement on the person;
5 (b) for a sample of the person's breath, oral fluid or
6 blood to be provided or taken in accordance
7 with an alcohol or drug testing requirement;
8 (c) for an assessment of drug impairment to be
9 carried out in relation to a person in accordance
10 with an alcohol or drug testing requirement.
11 (2) An inspector or police officer may require a person to
12 do 1 or more things under subsection (1), or impose
13 further requirements on the person under that
14 subsection, as is reasonable in the circumstances to
15 achieve a purpose referred to in subsection (1)(a), (b)
16 or (c).
17 (3) A requirement given to a person under subsection (1)
18 ceases to have effect to the extent that an inspector or
19 police officer --
20 (a) gives the person a later inconsistent
21 requirement; or
22 (b) indicates to the person that the requirement no
23 longer has effect.
24 (4) A person must comply with a requirement imposed on
25 the person under subsection (1) in accordance with the
26 directions of the inspector or police officer.
27 75GA. Requirement to stop vessel or navigate to suitable
28 location
29 (1) This section applies if an inspector or police officer
30 believes on reasonable grounds that it may be
31 necessary to impose an alcohol or drug testing
32 requirement on a person on a vessel.
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1 (2) The inspector or police officer may give a person
2 navigating the vessel a direction requiring the person
3 to --
4 (a) stop the vessel at a specified place; or
5 (b) navigate the vessel to a specified place that the
6 inspector or police officer considers is suitable
7 for --
8 (i) the purposes of imposing an alcohol or
9 drug testing requirement on a person; or
10 (ii) another purpose under this Part or
11 Part 3A.
12 Example for this subsection:
13 For the purposes of paragraph (b), a suitable place may be
14 a location to fasten a vessel to a mooring, wharf or jetty or a
15 location close to the shore.
16 (3) An inspector or police officer may require a person to
17 do 1 or more things under subsection (2), or impose
18 further requirements on the person under that
19 subsection, as is reasonable in the circumstances to
20 achieve a purpose referred to in subsection (2)(a)
21 or (b)(i) or (ii).
22 (4) A requirement under subsection (2) may be given to a
23 person orally or by means of a sign or signal
24 (electronic or otherwise), or in any other manner.
25 (5) A requirement given under subsection (2) to a person
26 ceases to have effect to the extent that an inspector or
27 police officer --
28 (a) gives the person a later inconsistent direction;
29 or
30 (b) indicates to the person that the direction no
31 longer has effect.
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1 (6) A person must comply with a requirement imposed on
2 the person under subsection (2) in accordance with the
3 directions of the inspector or police officer.
4 75GB. Power to board and move vessel
5 (1) An inspector or police officer may board a vessel, or
6 move a vessel to a place for safe custody --
7 (a) if the inspector or police officer believes on
8 reasonable grounds that the vessel has been
9 used in connection with an offence under
10 Part 3A or this Part; or
11 (b) for the purposes of imposing an alcohol or drug
12 testing requirement on a person on the vessel.
13 (2) An inspector or police officer may require a person on
14 the vessel, or the owner, operator, master or pilot of the
15 vessel, to take reasonable steps to facilitate the
16 boarding or moving of the vessel under subsection (1).
17 (3) A person must comply with a requirement imposed on
18 the person under subsection (2) in accordance with the
19 directions of the inspector or police officer.
20 75GC. Power to prevent use of vessel by alleged offender
21 (1) In this section --
22 key includes a device or thing that allows a vessel to be
23 operated.
24 Example for this definition:
25 A lanyard for a lanyard kill switch on an outboard motor.
26 (2) This section applies if an inspector or police officer has
27 reason for suspecting that a person has committed an
28 offence against any of the sections specified in the
29 Table.
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1 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence
of alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence
of both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by
drugs
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
2 (3) The inspector or police officer may require the person
3 to immediately give each key to a vessel in the
4 person's possession --
5 (a) to the inspector or police officer; or
6 (b) to another person in the person's company if
7 the inspector or police officer is satisfied that
8 the other person --
9 (i) is authorised to navigate the vessel; and
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1 (ii) is responsible and able to navigate the
2 vessel properly.
3 (4) An inspector or police officer may impose a
4 requirement under subsection (3) --
5 (a) if satisfied that the requirement is necessary in
6 the circumstances and is in the interests of the
7 person, or of any other person or of the public;
8 and
9 (b) whether or not the person has been or is to be
10 charged with an offence.
11 (5) If the keys to a vessel are given to an inspector or
12 police officer under subsection (3)(a), the inspector or
13 police officer may take any appropriate and practicable
14 steps to ensure that the vessel is secure and not causing
15 an obstruction.
16 (6) Those steps may include moving the vessel to a more
17 suitable place.
18 (7) Before giving the keys to a vessel to a person under
19 subsection (3)(b), an inspector or police officer may
20 require the person to provide a sample of breath for a
21 preliminary breath test for the purposes of the inspector
22 or police officer being satisfied that the person is able
23 to navigate the vessel properly.
24 75GD. Compliance with requirement
25 A person commits an offence if the person --
26 (a) fails to comply with any requirement imposed
27 on the person under section 75GC(3); or
28 (b) obstructs, or attempts to obstruct, an inspector
29 or police officer in the exercise of a power under
30 section 75GC(3), (5) or (7).
31 Penalty for this subsection: a fine of $600.
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1 75GE. Return of keys to vessel
2 (1) This section applies if the keys to a vessel are given to
3 an inspector or police officer under
4 section 75GC(3)(a).
5 (2) If a person asks an inspector or police officer to give
6 the person the keys to the vessel, the inspector or police
7 officer must comply with the request if satisfied that
8 the person --
9 (a) is entitled to lawful possession of the vessel or
10 is in the company of a person who is entitled to
11 lawful possession of the vessel; and
12 (b) is authorised to navigate the vessel; and
13 (c) is responsible and able to navigate the vessel
14 properly.
15 (3) Before giving keys to a vessel to a person under
16 subsection (2), an inspector or police officer may
17 require the person to provide a sample of breath for a
18 preliminary breath test for the purposes of the inspector
19 or police officer being satisfied that the person is able
20 to navigate the vessel properly.
21 (4) If keys to a vessel are not given to a person who makes
22 a request under subsection (2) within 24 hours after the
23 request is made, the person may apply to the
24 Magistrates Court for an order for the keys to be given
25 to the person named in the application.
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1 75GF. Prohibiting person from navigating vessel for
2 24 hours if prescribed illicit drug present
3 (1) This section applies if --
4 (a) drug testing of a sample of a person's oral fluid
5 indicates a prescribed illicit drug is present; or
6 (b) each of the following applies --
7 (i) a preliminary oral fluid test of a sample
8 of the person's oral fluid gives a
9 preliminary indication that a prescribed
10 illicit drug is present;
11 (ii) an inspector or police officer is
12 prevented by section 75FE from
13 requiring the person to provide a sample
14 of oral fluid for drug testing;
15 (iii) the inspector or police officer requires
16 the person to allow a prescribed sample
17 taker to take the person's blood for
18 analysis under section 75FF;
19 or
20 (c) a preliminary oral fluid test of a sample of the
21 person's oral fluid gives a preliminary
22 indication that a prescribed illicit drug is
23 present and, because of section 75FD(3), the
24 person cannot be required to provide another
25 sample of oral fluid for drug testing; or
26 (d) the person refuses or fails to provide a sample
27 of oral fluid for a preliminary oral fluid test or
28 drug testing, or to allow a sample of the
29 person's blood to be taken for analysis, having
30 been required to do so under Division 3.
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1 (2) An inspector or police officer may give the person a
2 notice (a prohibition notice) prohibiting the person
3 from navigating a vessel for 24 hours.
4 (3) A prohibition under subsection (2) applies in relation to
5 a vessel if a WA marine qualification is required to
6 navigate the vessel under this Act.
7 (4) A prohibition notice given to a person under
8 subsection (2) must be given personally.
9 (5) A person given a prohibition notice commits an
10 offence if the person fails to comply with the notice.
11 Penalty for this subsection:
12 (a) for a first offence, a fine of $1 250;
13 (b) for a second or subsequent offence, a fine of
14 $2 000.
15 75GG. Requirements for prohibition notice
16 A prohibition notice under section 75GF must --
17 (a) specify the grounds on which the notice is
18 given, including when subsection (1) of that
19 section applied to the person; and
20 (b) contain a statement to the effect that because
21 the person has been given the notice, the person
22 must not navigate a vessel for a period
23 commencing on receipt of the notice and
24 ending 24 hours after receipt of the notice; and
25 (c) specify the time at which the person is given
26 the prohibition notice and when the 24-hour
27 period ends.
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1 Division 5 -- Failure to comply with alcohol or drug
2 testing requirements
3 Subdivision 1 -- General offences relating to failure to
4 comply with alcohol or drug testing requirements
5 75H. Failure to comply with requirement: preliminary
6 breath test, preliminary oral fluid test or boarding
7 or moving vessel
8 (1) A person commits an offence if the person fails to
9 comply with --
10 (a) a requirement to provide a sample of breath for
11 a preliminary breath test under section 75EE or
12 75EF; or
13 (b) a requirement to provide a sample of oral fluid
14 for a preliminary oral fluid test under
15 section 75F or 75FA; or
16 (c) a leave vessel, accompany officer or wait
17 requirement relating to a requirement referred
18 to in paragraph (a) or (b); or
19 (d) a requirement to take reasonable steps to
20 facilitate an inspector or police officer boarding
21 or moving a vessel under section 75GB.
22 Penalty for this subsection:
23 (a) for a first offence, a fine of not less than
24 $450 or more than $1 200;
25 (b) for a second or subsequent offence, a fine of
26 not less than $900 or more than $2 100.
27 (2) A court sentencing a person for an offence against
28 subsection (1) must order that the person is disqualified
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1 from holding or obtaining a WA marine qualification
2 as follows --
3 (a) for a first offence, for a period of not less than
4 3 months;
5 (b) for a second or subsequent offence, for a period
6 of not less than 6 months.
7 (3) In determining whether an offence against
8 subsection (1) is a first, second or subsequent offence,
9 a previous offence against a provision specified in the
10 Table must be taken into account as if it were an
11 offence against subsection (1).
12 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
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Section no. Section heading
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 75HA. Defence: compliance with later requirement
2 (1) It is a defence to a charge of an offence against
3 section 75H(1) for the person charged to prove that the
4 person complied with a later requirement that arose out
5 of --
6 (a) the person's failure to comply with the
7 requirement the subject of the charge; or
8 (b) the circumstances that gave rise to the
9 requirement the subject of the charge.
10 (2) For the purposes of subsection (1), a later requirement
11 is --
12 (a) in relation to a requirement referred to in
13 section 75H(1)(a) --
14 (i) a requirement to provide a sample of
15 breath for breath analysis under
16 section 75EH or 75EI; or
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1 (ii) a requirement to allow a blood sample
2 to be taken for analysis under
3 section 75EH or 75EI;
4 or
5 (b) in relation to a requirement referred to in
6 section 75H(1)(b) --
7 (i) a requirement to provide a sample of
8 oral fluid for drug testing under
9 section 75FC; or
10 (ii) a requirement to allow a blood sample
11 to be taken for analysis under
12 section 75FF.
13 75HB. Failure to comply with requirement: breath
14 analysis, blood sample or stop vessel or navigate to
15 specified place
16 (1) A person commits an offence if the person fails to
17 comply with --
18 (a) a requirement to provide a sample of breath for
19 breath analysis under section 75EH or 75EI; or
20 (b) a requirement to allow a sample of the person's
21 blood to be taken for analysis under
22 section 75EH, 75EI, 75EN or 75EO; or
23 (c) a leave vessel, accompany officer or wait
24 requirement imposed in relation to a
25 requirement referred to in paragraph (a) or (b);
26 or
27 (d) a requirement to stop a vessel at, or navigate a
28 vessel to, a specified place under section 75GA.
29 Penalty for this subsection:
30 (a) for a first offence --
31 (i) if the person has 1 or more previous
32 convictions for a 0.08+ offence -- a fine
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1 of not less than $2 400 or more than
2 $5 650;
3 (ii) if the person has 1 or more previous
4 convictions for a 0.08+ and illicit drug
5 offence -- a fine of not less than $3 600
6 or more than $5 650;
7 (iii) if the person has 1 or more previous
8 convictions for a 0.08+ offence and 1 or
9 more previous convictions for a 0.08+
10 and illicit drug offence -- a fine of not
11 less than $3 600 or more than $5 650;
12 (iv) in any other case -- a fine of not less
13 than $2 050 or more than $5 650;
14 (b) for a second offence, imprisonment for
15 9 months or a fine of not less than $4 750 or
16 more than $7 900;
17 (c) for a third or subsequent offence,
18 imprisonment for 18 months or a fine of not
19 less than $4 750 or more than $11 250.
20 (2) If a person is convicted of an offence against
21 subsection (1), a court sentencing the person must
22 order that the person is disqualified from holding or
23 obtaining a WA marine qualification for not less than
24 the period of disqualification specified in the Table.
25 Table -- Disqualification periods
Disqualification
First offence:
(a) 1 previous conviction for a 0.08+ 18 months
offence
(b) 2 or more previous convictions for 30 months
a 0.08+ offence
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(c) 1 previous conviction for a 0.08+ and 27 months
illicit drug offence
(d) 2 or more previous convictions for 42 months
a 0.08+ and illicit drug offence
(e) 1 or more previous convictions for 42 months
a 0.08+ offence and 1 or more
previous convictions for a 0.08+ and
illicit drug offence
(f) any other case 15 months
Second offence 42 months
Third or subsequent offence Permanent
1 (3) In determining whether an offence against this section
2 is a first, second or subsequent offence, a previous
3 offence against a provision specified in the Table must
4 be taken into account as if it were an offence against
5 subsection (1).
6 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
7 (4) A police officer may arrest a person for an offence
8 against subsection (1) without a warrant.
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1 75HC. Failure to comply with requirement: incident
2 occasioning death, grievous bodily harm or bodily
3 harm
4 (1) A person commits a crime if the person commits an
5 offence against section 75HB(1) in the circumstance of
6 aggravation stated in subsection (2).
7 Alternative offence for this subsection:
8 section 75HB(1) (Failure to comply with
9 requirement: breath analysis, blood sample or stop
10 vessel or navigate to specified place).
11 Penalty for this subsection: imprisonment for 14 years
12 or a fine of any amount.
13 Summary conviction penalty for this subsection:
14 imprisonment for 18 months or a fine of $8 000.
15 (2) For the purposes of subsection (1), the circumstance of
16 aggravation is that when an inspector or police officer
17 imposes the requirement on the person the subject of
18 the offence against section 75HB(1), the inspector or
19 police officer --
20 (a) advises the person that the inspector or police
21 officer believes the vessel the person was, or is
22 believed to have been, navigating was involved
23 in an incident occasioning the death of, or
24 grievous bodily harm or bodily harm to,
25 another person; and
26 (b) explains the consequences of failing to comply
27 with the requirement to the person.
28 (3) A court sentencing a person for an offence against
29 subsection (1) must order that the person is disqualified
30 from holding or obtaining a WA marine qualification
31 as follows --
32 (a) in relation to a conviction on indictment -- for
33 a period of not less than 2 years;
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1 (b) in relation to a summary conviction -- for a
2 period of not less than 18 months.
3 (4) A police officer may arrest a person for an offence
4 against subsection (1) without a warrant.
5 75HD. Failure to comply with requirement: oral fluid
6 sample for drug testing or blood sample
7 (1) A person commits an offence if the person fails to
8 comply with --
9 (a) a requirement to provide a sample of oral fluid
10 for drug testing under section 75FC; or
11 (b) a requirement to allow a sample of the person's
12 blood to be taken for analysis under
13 section 75FF; or
14 (c) a leave vessel, accompany officer or wait
15 requirement imposed in relation to a
16 requirement referred to in paragraph (a) or (b).
17 Penalty for this subsection:
18 (a) for a first offence, a fine of not more than
19 $1 250;
20 (b) for a second or subsequent offence, a fine of
21 not less than $1 250 or more than $2 000.
22 (2) A court sentencing a person for a second or subsequent
23 offence against subsection (1) must order that the
24 person is disqualified from holding or obtaining a WA
25 marine qualification for a period of not less than
26 6 months.
27 (3) In determining whether an offence against this section
28 is a first, second or subsequent offence, a previous
29 offence against a provision specified in the Table must
30 be taken into account as if it were an offence against
31 subsection (1).
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1 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
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Section no. Section heading
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 75HE. Failure to comply with requirements relating to
4 assessment of drug impairment
5 (1) A person commits an offence if the person fails to
6 comply with --
7 (a) a requirement to undergo an assessment of drug
8 impairment under section 75FH; or
9 (b) a requirement to allow a blood sample to be
10 taken for analysis under section 75FJ; or
11 (c) a leave vessel, accompany officer or wait
12 requirement imposed in relation to a
13 requirement referred to in paragraph (a) or (b).
14 Penalty for this subsection:
15 (a) for a first offence, a fine of not less than
16 $1 750 or more than $3 750;
17 (b) for a second offence, imprisonment for
18 9 months or a fine of not less than $3 150 or
19 more than $5 250;
20 (c) for a third or subsequent offence,
21 imprisonment for 18 months or a fine of not
22 less than $3 150 or more than $7 500.
23 (2) A court sentencing a person for an offence against
24 subsection (1) must order that the person is disqualified
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1 from holding or obtaining a WA marine
2 qualification --
3 (a) for a first offence, for a period of not less than
4 10 months;
5 (b) for a second offence, for a period of not less
6 than 30 months;
7 (c) for a third or subsequent offence, permanently.
8 (3) In determining whether an offence against this section
9 is a first, second or subsequent offence, a previous
10 offence against a provision specified in the Table must
11 be taken into account as if it were an offence against
12 subsection (1).
13 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
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1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 Subdivision 2 -- Failure to comply with drug testing
4 requirements in circumstances relating to person's BAC
5 75HF. Term used: drug testing requirement
6 In this Subdivision --
7 drug testing requirement means --
8 (a) a requirement to provide a sample of oral fluid
9 for drug testing under section 75FC; or
10 (b) a requirement to allow a sample of blood to be
11 taken for analysis under section 75FF or 75FJ;
12 or
13 (c) a leave vessel, accompany officer or wait
14 requirement imposed in relation to a
15 requirement referred to in paragraph (a) or (b).
16 75HG. Failure to comply with drug testing requirement:
17 BAC of 0.05 or above
18 (1) A person commits an offence if the person fails to
19 comply with a drug testing requirement in
20 circumstances that, before an inspector or police officer
21 makes the drug testing requirement of the person --
22 (a) the person provides a sample of breath for
23 breath analysis under section 75EH or 75EI;
24 and
25 (b) the breath analysis conducted by an authorised
26 operator indicates that the person has a BAC of
27 0.05 g or above.
28 Alternative offence for this subsection: an offence
29 specified in the Table.
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1 Table -- Alternative offences
Section no. Section heading
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
2 (2) A person convicted of an offence against
3 subsection (1) --
4 (a) is liable to a penalty of a fine of not less than
5 the minimum fine or more than the maximum
6 fine specified in the Table; and
7 (b) a court sentencing the person must order that
8 the person is disqualified from holding or
9 obtaining a WA marine qualification for not
10 less than the minimum period of
11 disqualification specified in the Table.
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1 Table
BAC First Second Third or
offence offence subsequent
offence
≥ 0.05 g Min: $1 900 $1 900
but Max: $1 900 $3 000 $3 000
< 0.07 g Disq: 3 months 9 months 12 months
≥ 0.07 g Min: $1 900 $1 900
Max: $1 900 $3 000 $3 000
Disq: 3 months 12 months 15 months
2 Note: ≥ signifies of or above
3 < signifies less than
4 Disq signifies the minimum period of disqualification
5 Max signifies the maximum fine
6 Min signifies the minimum fine
7 (3) In determining whether an offence against this section
8 is a first, second or subsequent offence, a previous
9 offence against a provision specified in the Table must
10 be taken into account as if it were an offence against
11 subsection (1).
12 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
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Section no. Section heading
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 75HH. Failure to comply with drug testing requirement:
4 BAC of 0.08 or above
5 (1) A person commits an offence if the person fails to
6 comply with a drug testing requirement in
7 circumstances that, before an inspector or police officer
8 makes the drug testing requirement of the person --
9 (a) the person provides a sample of breath for
10 breath analysis under section 75EH or 75EI;
11 and
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1 (b) the breath analysis conducted by an authorised
2 operator indicates that the person has a BAC of
3 0.08 g or above.
4 Alternative offence for this subsection: an offence
5 specified in the Table.
6 Table -- Alternative offences
Section no. Section heading
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
7 (2) A person convicted of an offence against
8 subsection (1) --
9 (a) a fine of not less than the minimum fine or
10 more than the maximum fine specified in the
11 Table; and
12 (b) the court convicting the person must, in any
13 event, order that the person is disqualified from
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1 holding or obtaining a WA marine qualification
2 for not less than the minimum period of
3 disqualification specified in the Table.
4 Table
BAC First Second Third or
offence offence subsequent
offence
≥ 0.08 g Min: $1 150 $2 400 $2 400
but Max: $3 400 $3 400 $3 400
< 0.09 g Disq: 9 months 12 months 15 months
≥ 0.09 g Min: $1 300 $2 550 $2 550
but Max: $3 400 $3 400 $3 400
< 0.11 g Disq: 11 months 15 months 20 months
≥ 0.11 g Min: $1 500 $2 700 $2 700
but Max: $3 400 $4 500 $4 500
< 0.13 g Disq: 12 months 21 months 26 months
≥ 0.13 g Min: $1 750 $3 600 $3 600
Max: $3 400 $5 650 $6 750
Disq: 14 months 27 months 42 months
5 Note: ≥ signifies of or above
6 < signifies less than
7 Disq signifies the minimum period of disqualification
8 Max signifies the maximum fine
9 Min signifies the minimum fine
10 (3) In determining whether an offence against this section
11 is a first, second or subsequent offence --
12 (a) a previous offence against subsection (1) is to
13 be taken into account regardless of the person's
14 BAC when committing the offence; and
15 (b) a previous offence against a provision specified
16 in the Table must be taken into account as if it
17 were an offence against subsection (1).
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1 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
2 (4) A police officer may arrest a person for an offence
3 against subsection (1) without a warrant.
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1 75HI. Failure to comply with drug testing requirement:
2 BAC of 0.15 or above
3 (1) A person commits an offence if the person fails to
4 comply with a drug testing requirement in
5 circumstances that, before an inspector or police officer
6 makes the drug testing requirement of the person --
7 (a) the person provides a sample of breath for
8 breath analysis under section 75EH or 75EI;
9 and
10 (b) the breath analysis conducted by the inspector
11 or police officer indicates that the person has a
12 BAC of 0.15 g or above.
13 Alternative offence for this subsection: an offence
14 specified in the Table.
15 Table -- Alternative offences
Section no. Section heading
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
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Section no. Section heading
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
1 Penalty for this subsection:
2 (a) for a first offence --
3 (i) if the person has 1 or more previous
4 convictions for a 0.08+ offence -- a fine
5 of not less than $2 400 or more than
6 $5 650;
7 (ii) if the person has 1 or more previous
8 convictions for a 0.08+ and illicit drug
9 offence -- a fine of not less than $3 600
10 or more than $5 650;
11 (iii) if the person has 1 or more previous
12 convictions for a 0.08+ offence and 1 or
13 more previous convictions for a 0.08+
14 and illicit drug offence -- a fine of not
15 less than $3 600 or more than $5 650;
16 (iv) in any other case -- a fine of not less
17 than $2 050 or more than $5 650;
18 (b) for a second offence, imprisonment for
19 9 months or a fine of not less than $4 750 or
20 more than $7 900;
21 (c) for a third or subsequent offence,
22 imprisonment for 18 months or a fine of not
23 less than $4 750 or more than $11 250.
24 (2) If a person is convicted of an offence against
25 subsection (1), a court sentencing the person must
26 order that the person is disqualified from holding or
27 obtaining a WA marine qualification for not less than
28 the period of disqualification specified in the Table.
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1 Table -- Disqualification periods
Disqualification
First offence:
(a) 1 previous conviction for a 0.08+ 18 months
offence
(b) 2 or more previous convictions for 30 months
a 0.08+ offence
(c) 1 previous conviction for a 0.08+ and 27 months
illicit drug offence
(d) 2 or more previous convictions for 42 months
a 0.08+ and illicit drug offence
(e) 1 or more previous convictions for 42 months
a 0.08+ offence and 1 or more
previous convictions for a 0.08+ and
illicit drug offence
(f) any other case 15 months
Second offence 42 months
Third or subsequent offence Permanent
2 (3) In determining whether an offence against this section
3 is a first, second or subsequent offence --
4 (a) a previous offence against subsection (1) is to
5 be taken into account regardless of the person's
6 BAC when committing the offence; and
7 (b) a previous offence against a provision specified
8 in the Table must be taken into account as if it
9 were an offence against subsection (1).
10 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
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Section no. Section heading
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement: incident
occasioning death, grievous bodily harm or
bodily harm
s. 75HE(1) Failure to comply with requirements relating
to assessment of drug impairment
1 (4) A police officer may arrest a person for an offence
2 against subsection (1) without a warrant.
3 Subdivision 3 -- Defence for failing to comply with alcohol
4 or drug testing requirement
5 75HJ. Substantial reasons for failing to comply with
6 requirements or later providing certain samples
7 It is a defence to a charge of an offence of failing to
8 comply with an alcohol or drug testing requirement for
9 the person charged to prove that the substantial reason
10 for the failure to comply was a reason other than to
11 avoid providing information that might be used as
12 evidence.
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1 Division 6 -- General provisions relating to alcohol and
2 drug testing
3 75I. Responsibility to facilitate medical assistance
4 (1) This section applies if it appears to an inspector or
5 police officer that a person on whom the inspector or
6 police officer may impose an alcohol or drug testing
7 requirement is unconscious or seriously injured.
8 (2) The inspector or police officer must facilitate the
9 provision of medical assistance for the person.
10 75IA. When inspector or police officer must not impose
11 testing requirement because of passage of time
12 (1) This section applies if an inspector or police officer has
13 power under Division 2 or 3 to require a person --
14 (a) to provide a sample of breath for breath
15 analysis; or
16 (b) to provide a sample of oral fluid for drug
17 testing; or
18 (c) to allow a sample of the person's blood to be
19 taken for analysis; or
20 (d) to undergo an assessment of drug impairment.
21 (2) The inspector or police officer must not impose the
22 requirement on the person if it appears to the inspector
23 or police officer that the sample cannot be taken, or the
24 assessment of drug impairment cannot be conducted,
25 within 4 hours after the circumstances giving rise to the
26 requirement occurred.
27 (3) This section applies subject to section 75EP.
28 Note for this subsection:
29 Section 75EP allows a requirement to allow or cause a
30 sample of a person's blood to be taken within 12 hours after
31 an incident occurs in particular circumstances.
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1 75IB. Taking of oral fluid samples for oral fluid analysis
2 (1) This section applies if --
3 (a) an authorised drug tester conducts drug testing
4 of a sample of a person's oral fluid provided in
5 compliance with a requirement imposed under
6 section 75FC; and
7 (b) in the opinion of the authorised drug tester, the
8 drug testing indicates that the person's oral
9 fluid contains a prescribed illicit drug.
10 (2) The sample must be divided into 2 parts, each of which
11 is taken be a sample of the person's oral fluid for the
12 purposes of this Act.
13 (3) The authorised drug tester must ensure that both
14 samples are delivered to an inspector or police officer.
15 (4) An inspector, police officer or other person engaged for
16 the purpose must deliver 1 of the samples to the
17 Chemistry Centre (WA) on behalf of the person who
18 provided the sample.
19 Note for this subsection:
20 See section 75IF for the obligations of the Chemistry
21 Centre (WA) relating to the sample.
22 75IC. Authorisation for prescribed sample takers
23 authorised to take blood samples
24 (1) A prescribed sample taker is authorised to take a
25 sample of a person's blood for analysis if an inspector
26 or police officer under this Part --
27 (a) has required a person to allow a prescribed
28 sample taker nominated by the inspector or
29 police officer to take a sample of the person's
30 blood for analysis; or
31 (b) causes a prescribed sample taker to take a
32 sample of the person's blood for analysis.
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1 (2) No action lies against a prescribed sample taker by
2 reason only of the person taking a sample of a person's
3 blood for analysis under this Part.
4 75ID. Authorisation to take blood samples when person
5 deceased
6 (1) In this section --
7 serious incident means an incident in which a vessel is
8 involved that occasions the death of, or injury, to a
9 person.
10 (2) This section applies if --
11 (a) a person who may have been on a vessel when
12 the vessel was involved in a serious incident is
13 dead on arrival at a hospital or dies in a hospital
14 before a sample of the person's blood can be
15 taken; and
16 (b) were the person alive, they --
17 (i) may have been required to allow a
18 prescribed sample taker to take a sample
19 of the person's blood for analysis in
20 accordance with an alcohol or drug
21 testing requirement; or
22 (ii) may have been a person for whom a
23 prescribed sample taker may have been
24 caused to take a sample of the person's
25 blood for analysis.
26 (3) The medical practitioner who reports the death under
27 the Coroners Act 1996 section 17(3) may --
28 (a) take a sample of blood from the body of the
29 person; or
30 (b) as soon as practicable after reporting the death,
31 notify the coroner that a sample of blood should
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1 be taken from the person's body because of the
2 circumstances of the person's death.
3 (4) If the coroner is notified under subsection (3)(b), the
4 coroner may direct and authorise a pathologist to take a
5 sample of blood from the person's body.
6 (5) A person is not obliged to take a sample of blood under
7 this section if another sample of blood has previously
8 been taken from the person's body in accordance with
9 an alcohol or drug testing requirement relating to the
10 serious incident.
11 75IE. Taking blood samples for analysis
12 (1) This section applies if a prescribed sample taker takes a
13 sample of a person's blood for analysis in accordance
14 with an alcohol or drug testing requirement imposed on
15 the person.
16 (2) The sample must be taken --
17 (a) in accordance with the regulations or otherwise
18 in a proper manner; and
19 (b) either --
20 (i) as a single sample which is then divided
21 into 2 parts; or
22 (ii) as 2 samples taken 1 immediately after
23 the other.
24 (3) If 2 samples of the person's blood are taken under
25 subsection (2)(b) --
26 (a) the 2 samples are taken to be a single sample,
27 taken at the time the first of the 2 samples was
28 taken; and
29 (b) each of the 2 samples is taken to be --
30 (i) a part of that single sample that has been
31 divided into 2 parts; and
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1 (ii) a sample of the person's blood for the
2 purposes of this Act.
3 (4) The prescribed sample taker must ensure that both
4 samples are delivered to an inspector or police officer.
5 (5) An inspector, police officer or other person engaged for
6 the purpose must deliver 1 of the samples to the
7 Chemistry Centre (WA) on behalf of the person from
8 whom the samples were taken.
9 Note for this subsection:
10 See section 75IF for the obligations of the Chemistry
11 Centre (WA) relating to the sample.
12 (6) If a sample of a person's blood is analysed for alcohol
13 by an analyst in accordance with the regulations, the
14 BAC of the sample is the analysis result and is taken to
15 be the person's BAC at the time the sample of blood
16 was taken.
17 75IF. Oral fluid and blood samples delivered to
18 Chemistry Centre (WA)
19 (1) This section applies to a sample of oral fluid or blood
20 delivered to the Chemistry Centre (WA) on behalf of a
21 person under section 75IB(4) or 75IE(5).
22 (2) The Chemistry Centre (WA) must retain and
23 appropriately store the sample until the person requests
24 it.
25 (3) Within 3 months after the day on which the sample is
26 given to the Chemistry Centre (WA), the person may
27 ask for the sample to be delivered to an analyst (as
28 defined in the Misuse of Drugs Act 1981 section 3(1))
29 nominated by the person for analysis.
30 (4) The cost of delivering the sample must be paid for by
31 the person.
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1 (5) The Chemistry Centre (WA) is not required to store the
2 sample for more than 3 months.
3 75IG. Samples of oral fluid or blood not to be used to
4 obtain DNA profile
5 (1) In this section --
6 sample means a sample of oral fluid or blood taken
7 from or provided by a person (the subject) and given to
8 an inspector or police officer under section 75IB
9 or 75IE.
10 (2) A person must not use a sample to obtain the subject's
11 DNA profile.
12 Penalty for this subsection: imprisonment for
13 12 months.
14 Division 7 -- Administrative matters
15 75J. Regulations relating to alcohol and drug testing and
16 other matters
17 (1) The regulations may make provision in relation to
18 testing for alcohol or drugs, including --
19 (a) the procedures for, or equipment to be used
20 in --
21 (i) conducting a preliminary breath test,
22 breath analysis, preliminary oral fluid
23 test or drug testing; or
24 (ii) taking a sample of oral fluid or a blood
25 sample;
26 or
27 (b) the destruction of a sample, or other forensic
28 material, taken under this Part.
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1 (2) Regulations may apply or adopt instruments under the
2 Road Traffic Act 1974 for a purpose under this Act --
3 (a) with or without modifications; or
4 (b) as in force at a particular time or from time to
5 time.
6 75JA. Minister may approve alcohol and drug testing
7 devices
8 The Minister may approve, by notice published in the
9 Gazette, any of the following --
10 (a) a type of device that uses a sample of a
11 person's breath to indicate 1 or more of the
12 following --
13 (i) a person's BAC;
14 (ii) whether a person's BAC is of a
15 particular level or above;
16 (iii) whether or not alcohol is present in the
17 person's blood;
18 (b) a type of device that analyses a sample of a
19 person's breath to determine the person's BAC;
20 (c) a type of device that provides a preliminary
21 indication of the presence of a prescribed illicit
22 drug in a sample of a person's oral fluid;
23 (d) a type of device that ascertains whether a
24 prescribed illicit drug is present in a sample of a
25 person's oral fluid.
26 75JB. Delegation by Commissioner of Police
27 (1) The Commissioner of Police may delegate the
28 Commissioner's power under section 75EA(2),
29 75EB(2) or 124HP(2) to --
30 (a) a specified police officer; or
31 (b) a police officer of a specified class; or
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1 (c) a person who is employed in the department of
2 the Public Service principally assisting in the
3 administration of the Police Act 1892.
4 (2) The delegation must be in writing signed by the
5 Commissioner of Police.
6 (3) A person to whom a power is delegated under this
7 section cannot delegate that power.
8 (4) A person performing a power that has been delegated
9 to the person is taken to do so in accordance with the
10 terms of the delegation unless the contrary is shown.
11 (5) Nothing in this section limits the ability of the
12 Commissioner of Police to exercise a power or perform
13 a function through an officer or agent.
14
15 8. Section 124FA inserted
16 At the end of Part VIII insert:
17
18 124FA. Approved forms
19 (1) The chief executive officer may approve forms for use
20 under this Act.
21 (2) A certificate that is prescribed for a purpose under the
22 Road Traffic Act 1974 is taken to be the form of a
23 certificate approved under subsection (1) for a
24 corresponding purpose under this Act.
25 (3) A form approved under subsection (1) may apply or
26 adopt a form approved or prescribed under the Road
27 Traffic Act 1974 (other than a prescribed certificate
28 referred to in subsection (2)) for use for a
29 corresponding purpose under this Act.
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1 (4) A form referred to in subsection (2) or (3) may be used
2 even if the form is not modified in any way, including
3 not modified to refer to a provision of this Act relating
4 to the corresponding purpose for which it is used.
5 (5) The chief executive officer must make forms approved
6 under subsection (1) (other than forms to which
7 subsection (3) applies) available on the Department's
8 website.
9
10 9. Part 8A inserted
11 (1) After Part VIII insert:
12
13 Part 8A -- Disqualification from holding or
14 obtaining WA marine qualification
15 Division 1 -- Preliminary
16 124G. Terms used
17 In this Part --
18 alleged offence, in relation to a person, has the
19 meaning given in section 124GA(1);
20 disqualification notice has the meaning given in
21 section 124GA(3);
22 disqualification order, in relation to a person, means
23 an order made by a court on convicting the person for
24 an offence that disqualifies the person from holding or
25 obtaining a WA marine qualification for the period
26 specified in the order;
27 disqualified, in relation to a person, means the person
28 is disqualified from holding or obtaining a WA marine
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1 qualification by a disqualification order or under a
2 disqualification notice.
3
4 (2) After Part 8A Division 1 (as inserted by subsection (1)) insert:
5
6 Division 2 -- Disqualification notices
7 124GA. Disqualification by inspector or police officer
8 (1) This section applies if an inspector or police officer
9 suspects on reasonable grounds that a person has
10 committed an offence specified in the Table (the
11 alleged offence).
12 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under
influence of alcohol or drugs
s. 75CA(1) Navigation of vessel while under
influence of both alcohol and drugs
s. 75DA(1) Navigation of vessel while BAC is 0.08
or above
s. 75HB(1) Failure to comply with requirement:
breath analysis, blood sample or stop
vessel or navigate to specified place
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
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1 (2) For the purposes of subsection (1), reasonable grounds
2 in relation to an offence against 75C(1), 75CA(1)
3 or 75DA(1) include the result of a breath analysis of a
4 sample of a person's breath or analysis of a person's
5 blood.
6 (3) The inspector or police officer may give the person a
7 notice (a disqualification notice) stating that the person
8 is disqualified from holding or obtaining a WA marine
9 qualification for a period of 2 months starting when the
10 notice is given to the person.
11 Note for this subsection:
12 See section 124GD for the period for which a
13 disqualification notice is in effect.
14 (4) A disqualification notice given to a person under
15 subsection (3) must be given personally.
16 (5) The inspector or police officer giving the
17 disqualification notice to the person must write on it --
18 (a) the time and date the notice is given to the
19 person; and
20 (b) the time and date the period of disqualification
21 ends.
22 124GB. Requirements for disqualification notice
23 A disqualification notice given to a person must --
24 (a) specify the grounds on which the notice is
25 given; and
26 (b) identify the time and date on which the alleged
27 offence was committed; and
28 (c) identify where the alleged offence was
29 committed; and
30 (d) describe the alleged offence with reasonable
31 clarity; and
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1 (e) identify the offence, or offences, that the person
2 is suspected of committing; and
3 (f) state that the person may be able to apply to a
4 court under section 124GH for an order
5 revoking the disqualification notice in certain
6 circumstances.
7 124GC. Limitation on giving disqualification notice
8 An inspector or police officer cannot give a
9 disqualification notice to a person in relation to an
10 alleged offence more than 10 days after the later of the
11 following days --
12 (a) the day the alleged offence was committed;
13 (b) if a sample of the alleged offender's blood was
14 taken under section 75EH, 75EI, 75EN or
15 75EO in relation to the commission of the
16 alleged offence -- the day on which an
17 inspector or police officer receives information
18 about the result of the analysis of the sample.
19 124GD. Period of disqualification under disqualification
20 notice
21 A disqualification notice given to a person has effect
22 for the period --
23 (a) starting when the notice is given to the person;
24 and
25 (b) ending on the day that is 2 months after the day
26 on which it is given to the person, unless the
27 notice is revoked earlier.
28 124GE. Amendment of disqualification notice
29 An inspector or police officer may, by written notice
30 given to a person to whom a disqualification notice has
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1 been given, amend the disqualification notice to correct
2 an error in the notice.
3 124GF. Particulars of disqualification notice given to chief
4 executive officer
5 If an inspector or police officer gives a person a
6 disqualification notice, or a notice amending a
7 disqualification notice under section 124GE, the
8 inspector or police officer must ensure that particulars
9 of the notice are sent to the chief executive officer as
10 soon as practicable after giving the notice.
11 124GG. Revocation of disqualification notice by inspector or
12 police officer
13 (1) An inspector or police officer must immediately revoke
14 a disqualification notice given to a person in relation to
15 an alleged offence if --
16 (a) the inspector or police officer becomes aware
17 that the breath analysing equipment used to
18 conduct a breath analysis of a sample of the
19 person's breath in connection with the offence
20 was faulty at the time of the analysis; or
21 (b) a charge for the offence has not been laid
22 within 1 month after the day on which the
23 notice was given; or
24 (c) a charge for the offence is discontinued.
25 (2) The inspector or police officer who revokes a
26 disqualification notice under subsection (1) must, as
27 soon as practicable after the revocation, ensure that
28 notice of the revocation is given to --
29 (a) the person to whom the disqualification notice
30 was given; and
31 (b) the chief executive officer.
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1 124GH. Court may order revocation of disqualification
2 notice
3 (1) A person may apply to the Magistrates Court or, if the
4 person is under 18 years of age, to the Children's
5 Court, for an order revoking a disqualification notice
6 given to the person on the grounds that there are
7 exceptional circumstances that justify the revocation.
8 (2) An application made under subsection (1) must --
9 (a) include particulars of the exceptional
10 circumstances that the applicant alleges justify
11 revoking the notice; and
12 (b) be given to the chief executive officer at least
13 14 days before it is heard and determined.
14 (3) If the disqualification notice was issued by an
15 inspector, the chief executive officer is entitled to be
16 heard on the application.
17 (4) If the disqualification notice was issued by a police
18 officer, the Commissioner of Police is entitled to be
19 heard on the application.
20 (5) The court may make an order directing that the
21 disqualification notice be revoked from a specified day
22 if the court is satisfied that there are exceptional
23 circumstances that justify revoking the notice.
24 (6) If the court makes an order directing that a
25 disqualification notice issued by a police officer is
26 revoked, the court must ensure a copy of the order is
27 given to the chief executive officer.
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1 124GI. Disqualification notice automatically revoked on
2 acquittal or dismissal of charge
3 (1) A disqualification notice given to a person in relation
4 to an alleged offence is revoked if a court --
5 (a) acquits the person of the offence; or
6 (b) dismisses a charge for the offence.
7 (2) If a disqualification notice is revoked under this section
8 the court must ensure that information about the
9 revocation is sent to the chief executive officer.
10 124GJ. Period of disqualification under disqualification
11 notice to be taken into account in sentencing
12 (1) This section applies if a court convicts a person of an
13 offence to which a disqualification notice relates.
14 (2) When making an order disqualifying the person from
15 holding or obtaining a WA marine qualification, the
16 court must take into account the period of
17 disqualification that applies to the person under the
18 disqualification notice.
19
20 (3) At the end of Part 8A (as inserted by subsection (1)) insert:
21
22 Division 3 -- Provisions relating to disqualification
23 orders by a court
24 124GK. Application of Division
25 This Division applies if a court sentencing a person for
26 an offence makes a disqualification order in relation to
27 the person.
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1 124GL. Notifying chief executive officer of disqualification
2 order
3 The court must ensure that the following information
4 about a disqualification order is given to the chief
5 executive officer --
6 (a) details of the order;
7 (b) details of the offence to which the
8 disqualification relates;
9 (c) any other information prescribed for this
10 section.
11 124GM. Removal of disqualification
12 (1) A disqualified person may apply to a court for an order
13 removing the disqualification.
14 (2) However, the person cannot apply before the end of the
15 following period, starting on the day on which the
16 disqualification took effect --
17 (a) if the disqualification is for no more than
18 6 years -- 3 years;
19 (b) if the disqualification is for more than 6 years
20 but no more than 20 years -- one-half of the
21 period of the disqualification;
22 (c) if the disqualification is for more than 20 years
23 or is permanent -- 10 years.
24 (3) The application must be made to --
25 (a) if the disqualification was imposed by the
26 Supreme Court -- the Supreme Court; or
27 (b) in any other case -- the District Court.
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1 (4) The court may make an order removing the
2 disqualification from the day specified in the order or
3 refuse the application.
4 (5) In deciding the application, the court must have regard
5 to the following matters --
6 (a) the safety of the public generally;
7 (b) the character of the applicant;
8 (c) the circumstances of the case;
9 (d) the nature of the offence or offences giving rise
10 to the disqualification;
11 (e) the conduct of the applicant subsequent to the
12 disqualification.
13 124GN. Removal of disqualification: additional provisions
14 (1) A court to which an application is made under
15 section 124GM may order the applicant to pay all or
16 part of the costs of an application.
17 (2) The chief executive officer has a right to be heard in
18 proceedings for the application.
19 (3) If the court refuses the application, a further application
20 cannot be heard during the period of 1 year after the
21 day of refusal.
22 (4) This section and section 124GM do not limit or
23 otherwise affect any right a person may have to appeal
24 against a disqualification order.
25 124GO. Notifying chief executive officer of disqualification
26 order
27 A court ordering that the disqualification of a person be
28 removed must ensure that the following information is
29 given to the chief executive officer --
30 (a) details of the order;
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1 (b) details of the disqualification;
2 (c) any other information prescribed for this
3 section.
4 Division 4 -- Effect of disqualifications and other
5 matters
6 124GP. Effect of disqualification
7 (1) A WA marine qualification held by a person is
8 suspended while the person is disqualified.
9 (2) A WA marine qualification obtained by a person while
10 the person is disqualified has no effect.
11 (3) Subsection (2) applies whether or not the person
12 applied for the WA marine qualification before
13 becoming disqualified.
14 (4) This section --
15 (a) does not operate to extend the period for which
16 a WA marine qualification may be valid or
17 effective beyond the time it would otherwise
18 expire; and
19 (b) does not affect the cancellation of a WA marine
20 qualification under regulations referred to in
21 section 124GQ(a).
22 124GQ. Other effects of disqualification
23 The regulations may provide --
24 (a) for the circumstances in which a WA marine
25 qualification held by a person who is
26 disqualified under a disqualification order may
27 be cancelled; and
28 (b) if a person is disqualified from holding or
29 obtaining a marine qualification under the law
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1 of another Australian jurisdiction or an
2 overseas jurisdiction, that --
3 (i) a WA marine qualification held by the
4 person is suspended while the
5 disqualification is in effect or may be
6 cancelled; or
7 (ii) the person cannot obtain a WA marine
8 qualification.
9 124GR. Calculating period of disqualification
10 Any of the following periods do not count towards a
11 period of disqualification for a person --
12 (a) a period during which the person is in custody
13 serving a sentence of imprisonment;
14 (b) if the person appeals against the conviction or
15 sentence that gave rise to the disqualification --
16 the period starting when the person commences
17 the appeal and ending when the appeal is
18 decided, dismissed or withdrawn.
19 124GS. Navigating certain vessels when disqualified from
20 holding or obtaining WA marine qualification
21 (1) In this section --
22 navigate, a vessel, has the meaning given in
23 section 75AA(2);
24 relevant vessel means a vessel for which a WA marine
25 qualification is required to navigate it under this Act.
26 (2) A person commits an offence if the person navigates a
27 relevant vessel while the person is disqualified.
28 Penalty for this subsection:
29 (a) for a first offence, imprisonment for
30 12 months or a fine of not less than $400 or
31 more than $2 000;
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1 (b) for a second or subsequent offence,
2 imprisonment for 18 months or a fine of not
3 less than $1 000 or not more than $4 000.
4 (3) A court sentencing a person for an offence against
5 subsection (2) must order that the person is disqualified
6 from holding or obtaining a WA marine qualification
7 for a period of not less than 3 months or more than
8 9 months.
9 (4) A period of disqualification ordered under
10 subsection (3) is cumulative upon --
11 (a) another period for which the person is
12 disqualified; or
13 (b) if a WA marine qualification held by the person
14 is suspended when the order is made -- the
15 period of suspension.
16 (5) It is a defence to a charge of an offence against
17 subsection (2) for the person charged to prove that the
18 person --
19 (a) held an exemption issued by the chief executive
20 under this Act from holding a WA marine
21 qualification; and
22 (b) was navigating the vessel in accordance with
23 the exemption at the time the alleged offence
24 was committed.
25 (6) A police officer may arrest a person for an offence
26 against subsection (2) without a warrant.
27
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1 10. Part IX Divisions 1 and 2 inserted
2 (1) Before Part IX Division 2 (as inserted by subsection (2)) insert:
3
4 Division 1 -- Evidentiary provisions for alcohol-related
5 offences and drug-related offences
6 Subdivision 1 -- Preliminary
7 124H. Terms used
8 In this Division --
9 alcohol-related offence has the meaning given in
10 section 124HC(1);
11 approved expert has the meaning given in the Road
12 Traffic Act 1974 section 70(7);
13 authorised drug tester has the meaning given in
14 section 75EB(1);
15 authorised operator has the meaning given in
16 section 75EA(1);
17 certificate means a certificate in the form approved
18 under section 124FA(1);
19 drug-related offence has the meaning given in
20 section 124HI(1);
21 material time has the meaning given in --
22 (a) in relation to an alcohol-related offence --
23 section 124HC(2); or
24 (b) in relation to a drug-related offence --
25 section 124HI(2);
26 navigate, a vessel, has the meaning given in
27 section 75AA(2);
28 operate, a vessel, has the meaning given in
29 section 75AA(1);
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1 preliminary breath test has the meaning given in
2 section 75E;
3 preliminary oral fluid test has the meaning given in
4 section 75E;
5 prescribed sample taker has the meaning given in
6 section 75E;
7 sampling equipment means the equipment referred to
8 in the Road Traffic Act 1974 section 70 as the
9 prescribed equipment that must be used for taking
10 blood samples for the purposes of Part 3B.
11 124HA. Certificate is evidence of stated facts
12 (1) This section applies in relation to a certificate --
13 (a) purporting to be signed by a person; and
14 (b) stating any of the matters that, under this
15 Division, the person may certify.
16 (2) In a proceeding for an alcohol-related offence or a
17 drug-related offence, the certificate is evidence of the
18 facts stated in the certificate without proof of the
19 person's signature.
20 124HB. No limit on other evidence in proceedings
21 (1) Nothing in this Division is to be construed as limiting
22 the evidence that may be introduced in a proceeding for
23 an offence against this Act or another written law that
24 is relevant to whether or not a person is guilty of the
25 offence.
26 (2) Subsection (1) applies in relation to evidence
27 regardless of whether the evidence is in addition to, or
28 independent of, any evidence that is provided for under
29 this Division.
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s. 10
1 Subdivision 2 -- Evidence in proceedings for alcohol-related
2 offences
3 124HC. Alcohol-related offence and material time
4 (1) An alcohol-related offence is --
5 (a) an offence against a section specified in the
6 Table; or
7 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75D(1) Navigation of vessel while BAC is 0.05 or
above
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
8 (b) an offence against this Act or another written
9 law if either of the following matters is relevant
10 to the proceeding --
11 (i) whether or not a person was under the
12 influence of alcohol at a material time;
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1 (ii) the extent to which a person was under
2 the influence of alcohol at a material
3 time.
4 (2) The material time, in relation to a person about whom
5 evidence is given for an alcohol-related offence, is --
6 (a) for an offence mentioned in
7 subsection (1)(a) -- the time at which a person
8 is alleged to have navigated, or attempted to
9 operate, a vessel while the person had a
10 particular BAC;
11 (b) for an offence mentioned in
12 subsection (1)(b) -- the material time
13 mentioned in subsection (1)(b)(i) or (ii) in
14 relation to the offence.
15 124HD. Evidence in proceeding for alcohol-related offence
16 (1) Evidence about any of the following matters may be
17 given in a proceeding for an alcohol-related offence --
18 (a) the provision of a sample of breath by a person
19 for breath analysis, if the sample is provided
20 within 4 hours after the material time;
21 (b) the analysis of the sample of the person's
22 breath by breath analysing equipment operated
23 by an authorised operator;
24 (c) the manner in which the breath analysing
25 equipment indicated a result of the breath
26 analysis;
27 (d) the result indicated by the breath analysing
28 equipment;
29 (e) the taking of a sample of blood from the person
30 by a prescribed sample taker, if the sample is
31 taken --
32 (i) within 4 hours after the material time; or
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1 (ii) if the sample is taken in accordance
2 with a requirement under
3 section 75EO -- within 12 hours after
4 the material time;
5 (f) the analysis of the sample of the person's blood
6 for alcohol by an analyst;
7 (g) the result of the analysis of the sample.
8 (2) Subsection (1) does not limit the admissibility of other
9 evidence that may be given in the proceeding.
10 124HE. Evidence of authorised operator of breath analysing
11 equipment
12 In a proceeding for an alcohol-related offence,
13 evidence given by an authorised operator about any of
14 the following is evidence of that fact --
15 (a) the device operated by the authorised operator
16 to conduct an analysis of a breath sample was
17 breath analysing equipment;
18 (b) the authorised operator operated the breath
19 analysing equipment --
20 (i) in the prescribed manner; and
21 (ii) in compliance with the regulations
22 relating to the type of breath analysing
23 equipment;
24 (c) when operated, the breath analysing equipment
25 indicated a result in the prescribed manner.
26 124HF. Certificate of authorised operator of breath
27 analysing equipment
28 For the purposes of section 124HA, the matters that a
29 person who is an authorised operator may certify in a
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1 certificate are that, on a specified date or at a specified
2 time --
3 (a) a specified person provided a sample of breath
4 for breath analysis; and
5 (b) the person was an authorised operator; and
6 (c) the sample of breath provided was analysed
7 using a device that was breath analysing
8 equipment that was operated by the person; and
9 (d) the person used the breath analysing equipment
10 in the prescribed manner and in accordance
11 with the regulations relating to breath analysis
12 conducted using that type of breath analysing
13 equipment; and
14 (e) at the conclusion of the breath analysis, the
15 breath analysing equipment indicated a result in
16 the prescribed manner; and
17 (f) the result of the breath analysis was the
18 specified result; and
19 (g) in accordance with section 75EM, the person
20 gave the specified person a written statement or
21 statement printed by the breath analysing
22 equipment referred to in that section.
23 124HG. Certificate of analyst relating to analysis of blood
24 sample for alcohol
25 For the purposes of section 124HA, the matters that a
26 person who is an analyst may certify in a certificate are
27 that, on a specified date or at a specified time --
28 (a) the person was an analyst; and
29 (b) the person received a sample of blood --
30 (i) identified in the specified way; and
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1 (ii) identified as a sample taken from a
2 specified person;
3 and
4 (c) the person analysed the sample for alcohol in
5 accordance with the regulations, and
6 (d) the result from the analysis was the specified
7 BAC.
8 Example for this section:
9 For the purposes of paragraph (b)(i), a sample may be
10 identified by a number on the container for the sample.
11 124HH. Proof of person's BAC for certain offences
12 (1) This section applies in a proceeding for an
13 alcohol-related offence referred to in
14 section 124HC(1)(a).
15 (2) In the absence of proof to the contrary, the accused is
16 taken to have a particular BAC at the time the accused
17 navigated, or attempted to operate, a vessel if it is
18 proved the person had that BAC --
19 (a) within 4 hours after the time of the navigation
20 or attempted operation; or
21 (b) if the proof of the person's BAC relates to a
22 sample of the person's blood taken in
23 accordance with a requirement imposed under
24 section 75EO -- within 12 hours after the time
25 of the navigation or attempted operation.
26 (3) Evidence that the accused consumed alcohol during the
27 relevant period is not admissible to rebut the
28 presumption created under subsection (2).
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1 (4) For the purposes of subsection (3), the relevant period
2 is the period --
3 (a) starting at the latest time it is alleged the
4 accused navigated or attempted to operate a
5 vessel; and
6 (b) ending when the person provided the sample of
7 breath, or the sample of the person's blood was
8 taken, which established proof of the person's
9 BAC.
10 Subdivision 3 -- Evidence in proceedings for drug-related
11 offences
12 124HI. Drug-related offence and material time
13 (1) A drug-related offence is --
14 (a) an offence against any of the sections specified
15 in the Table; or
16 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence of
both alcohol and drugs
s. 75CD(1) Navigation of vessel while impaired by drugs
s. 75DB(1) Navigation of vessel while prescribed illicit
drug present
s. 75DC(1) Navigation of vessel while BAC is 0.05 or
above and prescribed illicit drug present
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Section no. Section heading
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
1 (b) an offence against this Act or another written
2 law if either of the following matters is relevant
3 to the proceeding --
4 (i) whether or not a person was under the
5 influence of, or impaired by, a drug at a
6 material time;
7 (ii) the extent to which a person was under
8 the influence of, or impaired by, a drug
9 at a material time.
10 (2) The material time, in relation to a person about whom
11 evidence for a drug-related offence is given, is --
12 (a) for an offence mentioned in
13 subsection (1)(a) -- the time at which a person
14 is alleged to have navigated, or attempted to
15 operate, a vessel while --
16 (i) the person was under the influence of a
17 drug; or
18 (ii) the person was impaired by drugs; or
19 (iii) a prescribed illicit drug was present in
20 the person's body;
21 or
22 (b) for an offence mentioned in
23 subsection (1)(b) -- the material time
24 mentioned in subsection (1)(b)(i) or (ii) in
25 relation to the offence.
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1 124HJ. Evidence in proceedings for drug-related offences
2 (1) Evidence about the following matters may be given in
3 a proceeding for a drug-related offence --
4 (a) the taking of a sample of blood from a person
5 by a prescribed sample taker, if the sample is
6 taken --
7 (i) within 4 hours after the material time; or
8 (ii) if the sample is taken in accordance
9 with a requirement imposed under
10 section 75EO -- within 12 hours after
11 the material time;
12 (b) the analysis of the sample of the person's blood
13 for drugs by a drugs analyst;
14 (c) the result obtained from the analysis;
15 (d) the behaviour, condition or appearance of a
16 person at the material time;
17 (e) the behaviour or a condition associated with a
18 person who has consumed or used a particular
19 drug or combination of drugs;
20 (f) the usual effect that the behaviour or a
21 condition associated with a person who has
22 consumed or used a particular drug or
23 combination of drugs has on a person's
24 capacity to have proper control of a vessel;
25 (g) the provision of a sample of oral fluid by the
26 person, if the sample is provided within 4 hours
27 after the material time;
28 (h) the analysis of the sample of the person's oral
29 fluid for drugs by a drugs analyst;
30 (i) the result obtained from the analysis.
31 (2) Subsection (1) does not limit the admissibility of other
32 evidence that may be given in the proceeding.
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1 124HK. Certificate of authorised drug tester
2 For the purposes of section 124HA, the matters that a
3 person who is an authorised drug tester may certify in a
4 certificate are that, on a specified date or at a specified
5 time --
6 (a) the person was an authorised drug tester; and
7 (b) the person --
8 (i) took a sample of oral fluid from a
9 specified person on a specified date and
10 at a specified time; and
11 (ii) identified the sample in the specified
12 way;
13 and
14 (c) the sampling equipment the person used to take
15 the sample --
16 (i) is identified in the specified way; and
17 (ii) was given to the person by a specified
18 person; and
19 (iii) was received in the specified condition;
20 and
21 (d) the person took the sample in accordance with
22 the regulations.
23 Example for this section:
24 For the purposes of paragraph (c)(i), a sample may be
25 identified by a number on the container for the sample.
26 124HL. Certificate of drugs analyst relating to analysis of
27 oral fluid or blood sample for drugs
28 For the purposes of section 124HA, the matters that a
29 person who is a drugs analyst may certify in a
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1 certificate are that, on a specified date or at a specified
2 time --
3 (a) the person was a drugs analyst; and
4 (b) the person received a sample of oral fluid or
5 blood --
6 (i) identified in the specified way; and
7 (ii) identified as a sample taken from a
8 specified person;
9 and
10 (c) the person analysed the sample for drugs, and
11 (d) the analysis produced the specified result.
12 Example for this section:
13 For the purposes of paragraph (b)(i): a sample may be
14 identified by a number on the container for the sample.
15 124HM. Certificate of approved expert relating to usual
16 effect of particular drugs
17 For the purposes of section 124HA, the matters that a
18 person who is an approved expert may certify in a
19 certificate are --
20 (a) that, on a specified date or at a specified time,
21 the person was an approved expert; and
22 (b) a description of the usual behaviour, condition
23 or appearance associated with a person who has
24 consumed or used a specified drug or
25 combination of drugs; and
26 (c) a description of the usual effect that the
27 behaviour or a condition associated with a
28 person who has consumed or used a specified
29 drug or combination of drugs has on a person's
30 capacity to have proper control of a vessel.
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1 124HN. Certificate of inspector or police officer
2 For the purposes of section 124HA, the matters that a
3 person who is an inspector or police officer may certify
4 in a certificate are that, on a specified date or at a
5 specified time --
6 (a) a specified person who navigated, or attempted
7 to operate, a vessel behaved in a specified way
8 or had a specified condition or appearance; and
9 (b) the person conducted an assessment of drug
10 impairment on a specified person; and
11 (c) the person conducted the assessment in
12 accordance with the regulations; and
13 (d) during the assessment, the specified person
14 behaved in a specified way or had a specified
15 condition or appearance.
16 124HO. Proof of presence of drugs
17 (1) This section applies in a proceeding for an offence
18 specified in the Table.
19 Table -- Offences
Section no. Section heading
s. 75CD(1) Navigation of vessel while impaired by
drugs
s. 75DB(1) Navigation of vessel while prescribed
illicit drug present
s. 75DC(1) Navigation of vessel while BAC is 0.05
or above and prescribed illicit drug
present
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Section no. Section heading
s. 75DD(1) Navigation of vessel while BAC is 0.08
or above and prescribed illicit drug
present
1 (2) In the absence of evidence to the contrary, the presence
2 of a drug in a person's body is taken to be proved if it
3 is proved that the drug was present in the person's
4 body --
5 (a) within 4 hours after the material time; or
6 (b) if the presence of the drug is proved in relation
7 to a sample of the person's blood taken in
8 accordance with a requirement imposed under
9 section 75EO -- within 12 hours after the
10 material time.
11 Subdivision 4 -- Other evidentiary provisions
12 124HP. Certificate of chief executive officer, Commissioner
13 of Police or CEO of Chemistry Centre (WA)
14 (1) The chief executive officer may issue a certificate
15 certifying that, on a specified date or during a specified
16 period --
17 (a) a specified person was an inspector; and
18 (b) whether or not the person was competent to
19 operate breath analysing equipment or a drug
20 testing device.
21 (2) The Commissioner of Police may issue a certificate
22 certifying that, on a specified date or during a specified
23 period --
24 (a) a specified police officer was an authorised
25 operator competent to operate breath analysing
26 equipment; or
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1 (b) a specified police officer was an authorised
2 drug tester competent to operate a drug testing
3 device.
4 (3) The chief executive officer of the Chemistry Centre
5 (WA) may issue a certificate certifying that, on a
6 specified date or during a specified period --
7 (a) a specified person was an analyst; or
8 (b) a specified person was a drugs analyst.
9 (4) In any proceeding, a certificate referred to in
10 subsection (1), (2) or (3), purporting to be signed by
11 the person mentioned in that subsection, is evidence of
12 the facts stated in the certificate without proof of the
13 person's signature.
14 124HQ. Certificate of technologist who prepared sampling
15 equipment
16 (1) In this section --
17 approved body means a body referred to in the Road
18 Traffic Act 1974 section 70 as a body approved by the
19 Minister in relation to technologists who prepare
20 sampling equipment;
21 prescribed items means items referred to in the Road
22 Traffic Act 1974 section 70 as the prescribed items that
23 must comprise sampling equipment;
24 technologist has the meaning given in the Road Traffic
25 Act 1974 section 70(7).
26 (2) For the purposes of section 124HA, the matters that a
27 person who is a technologist of an approved body may
28 certify in a certificate are that --
29 (a) sampling equipment identified in the certificate
30 comprises the prescribed items; and
31 (b) the technologist prepared the prescribed items;
32 and
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1 (c) the prescribed items are sterile and fit for the
2 purpose of taking a sample of blood for
3 analysis if used for that purpose no later than a
4 specified date.
5 Example for this subsection:
6 For the purposes of paragraph (a), sampling equipment
7 may be identified by a serial number.
8 124HR. Certificate of prescribed sample taker
9 For the purposes of section 124HA, the matters that a
10 person who is a prescribed sample taker may certify in
11 a certificate are that, on a specified date or at a
12 specified time --
13 (a) the person was a prescribed sample taker; and
14 (b) the person --
15 (i) took a sample of blood from a specified
16 person on a specified date and at a
17 specified time; and
18 (ii) identified the sample in the specified way;
19 and
20 (c) the sampling equipment the person used to take
21 the sample --
22 (i) is identified in the specified way; and
23 (ii) was given to the person by a specified
24 person; and
25 (iii) was received in the specified condition;
26 and
27 (d) the person took the sample in accordance with
28 the regulations.
29 Examples for this subsection:
30 1. For the purposes of paragraph (b)(ii), a sample may be
31 identified by a number on the container for the sample.
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1 2. For the purposes of paragraph (c)(i), sampling equipment
2 may be identified by a serial number.
3 124HS. Evidence of delivery of blood or oral fluid samples
4 (1) In this section --
5 prescribed particulars means the prescribed particulars
6 of the delivery of a sample to an analyst or drugs
7 analyst referred to in the Road Traffic Act 1974
8 section 70B(1).
9 (2) This section applies in a proceeding for --
10 (a) an alcohol-related offence referred to in
11 section 124HC(1)(a); or
12 (b) a drug-related offence referred to in
13 section 124HI(1)(a).
14 (3) For the purposes of section 124HA, a person who takes
15 delivery of a sample delivered to an analyst or drugs
16 analyst may certify in a certificate the prescribed
17 particulars of the delivery of the sample.
18 124HT. Procedural requirements for admissibility of
19 particular certificate evidence
20 (1) This section relates to evidence in the form of a
21 certificate of --
22 (a) an analyst under section 124HG; or
23 (b) a drugs analyst under section 124HL; or
24 (c) an approved expert under section 124HM; or
25 (d) a person who takes delivery of a sample
26 delivered to an analyst or a drugs analyst under
27 section 124HS.
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1 (2) The certificate is not admissible as evidence in a
2 proceeding unless --
3 (a) a copy of the certificate is served on the
4 accused at least 28 days before the day on
5 which the certificate is adduced in the
6 proceeding; or
7 (b) it is adduced in the proceeding by, or with the
8 consent of, the accused.
9 (3) The accused cannot challenge or call into question any
10 matter set out in a certificate admitted under
11 subsection (2) unless --
12 (a) written notice of the accused's intention to
13 challenge or question the matter is served on
14 the prosecutor at least 14 days before the day
15 on which the certificate is produced; or
16 (b) the court, in the interests of justice, gives the
17 accused leave to challenge or question the
18 matter.
19 (4) A notice referred to in subsection (3)(a) must specify
20 the matter that is to be challenged or called into
21 question.
22 124HU. Evidence relating to preliminary oral fluid test,
23 drug testing and preliminary breath test is
24 admissible in certain proceedings with consent
25 (1) Evidence about a matter referred to subsection (2) is
26 only admissible in a proceeding for an offence if --
27 (a) the proceeding is for an offence specified in the
28 Table; or
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1 Table -- Offences
Section no. Section heading
s. 75H(1) Failure to comply with requirement:
preliminary breath test, preliminary oral fluid
test or boarding or moving vessel
s. 75HD(1) Failure to comply with requirement: oral fluid
sample for drug testing or blood sample
s. 75HG(1) Failure to comply with drug testing
requirement: BAC of 0.05 or above
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
s. 75GF(5) Prohibiting person from navigating vessel for
24 hours if prescribed illicit drug present
2 (b) for a proceeding for any other offence against
3 this Act or another written law -- the evidence
4 is adduced in the proceeding by, or with the
5 consent of, the person the subject of the
6 evidence.
7 (2) For the purposes of subsection (1), the matters are --
8 (a) that a person provided a sample of breath for a
9 preliminary breath test and any indication
10 provided by the preliminary breath testing
11 device used for the test; and
12 (b) that a person provided a sample of oral fluid for
13 a preliminary oral fluid test and any indication
14 provided by the preliminary oral fluid testing
15 device used for the test; and
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1 (c) the result of the drug testing of a sample of a
2 person's oral fluid by a drug testing device.
3 (3) Evidence that a person provided a sample of the
4 person's oral fluid for drug testing is only admissible in
5 a proceeding for an offence if --
6 (a) the proceeding is for a drug-related offence; or
7 (b) the proceeding is for an offence specified in the
8 Table to subsection (1)(a); or
9 (c) the evidence is adduced by, or with the consent
10 of, the person the subject of the evidence.
11
12 (2) At the beginning of Part IX insert:
13
14 Division 2 -- Provisions relating to sentencing for
15 dangerous navigation and alcohol and drug related
16 offences
17 124I. Term used: young person
18 In this Division --
19 young person has the meaning given in the Young
20 Offenders Act 1994 section 3(1).
21 124IA. Limitation on period for which previous offences
22 taken into account
23 (1) This section applies if a person is convicted of an
24 offence against Part 3A or 3B and the penalty for the
25 offence varies according to whether the person has
26 been previously convicted for another offence.
27 (2) If a person's conviction for a previous offence was
28 recorded more than 20 years before the commission of
29 the offence for which the person is being sentenced, the
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1 previous offence must not be taken into account in
2 determining the penalty to be imposed.
3 124IB. Sentencing for particular offences: option for
4 community based order or youth community based
5 order
6 (1) This section applies if a court is sentencing a person
7 who has been convicted of --
8 (a) a first offence against a section mentioned in
9 Table 1; or
10 Table 1 -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under
influence of alcohol or drugs
s. 75CA(1) Navigation of vessel while under
influence of both alcohol and drugs
s. 75HB(1) Failure to comply with requirement:
breath analysis, blood sample or stop
vessel or navigate to specified place
s. 75HC(1) Failure to comply with requirement:
incident occasioning death, grievous
bodily harm or bodily harm
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
11 (b) any offence against a section mentioned in
12 Table 2.
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1 Table 2 -- Offences
Section no. Section heading
s. 75DA(1) Navigation of vessel while BAC is 0.08 or
above
s. 75DD(1) Navigation of vessel while BAC is 0.08 or
above and prescribed illicit drug present
s. 75H(1) Failure to comply with requirement:
preliminary breath test, preliminary oral
fluid test or boarding or moving vessel
s. 75HH(1) Failure to comply with drug testing
requirement: BAC of 0.08 or above
2 (2) The court may, instead of imposing a fine --
3 (a) order the release of the person; and
4 (b) impose a community based order under the
5 Sentencing Act 1995 with at least a community
6 service requirement as a primary requirement
7 of the order.
8 (3) If the offender is a young person, the court may,
9 instead of imposing a fine, make a youth community
10 based order under the Young Offenders Act 1994,
11 imposing at least community work conditions on the
12 offender.
13 (4) Subsection (3) applies subject to sections 50, 50A
14 and 50B of the Young Offenders Act 1994.
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1 124IC. Sentencing for particular offences if community
2 based order or intensive supervision order imposed
3 (1) This section applies if --
4 (a) a court is sentencing a person who has been
5 convicted of --
6 (i) an offence against section 75HG(1)
7 (Failure to comply with drug testing
8 requirement: BAC of 0.05 or above); or
9 (ii) a second or subsequent offence against a
10 section specified in the Table;
11 Table -- Offences
Section no. Section heading
s. 75C(1) Navigation of vessel while under influence
of alcohol or drugs
s. 75CA(1) Navigation of vessel while under influence
of both alcohol and drugs
s. 75HB(1) Failure to comply with requirement: breath
analysis, blood sample or stop vessel or
navigate to specified place
s. 75HC(1) Failure to comply with requirement:
incident occasioning death, grievous bodily
harm or bodily harm
s. 75HI(1) Failure to comply with drug testing
requirement: BAC of 0.15 or above
12 and
13 (b) the court orders the release of the offender; and
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1 (c) the court imposes --
2 (i) a community based order or an intensive
3 supervision order under the Sentencing
4 Act 1995; or
5 (ii) if the offender is a young person -- a
6 youth community based order or an
7 intensive youth supervision order under
8 the Young Offenders Act 1994.
9 (2) If the court imposes an order referred to in
10 subsection (1)(c)(i), the court must impose at least a
11 community service requirement as a primary
12 requirement of the community based order or intensive
13 supervision order.
14 (3) If the court imposes an order referred to in
15 subsection (1)(c)(ii), the court must impose community
16 work conditions on the offender as part of the youth
17 community based order or intensive youth supervision
18 order.
19 124ID. Pre-sentence report required for sentencing for
20 navigation while impaired by drugs
21 A court sentencing a person who has been convicted of
22 an offence against section 75CD(1) (Navigation of
23 vessel while impaired by drugs) must order a
24 pre-sentence report about the offender under the
25 Sentencing Act 1995 Part 3 Division 3.
26 124IE. Sentencing for first offence of navigation while
27 impaired by drugs or failure to comply with drug
28 impairment assessment
29 (1) This section applies if a court is sentencing a person
30 who has been convicted of a first offence against --
31 (a) section 75CD(1) (Navigation of vessel while
32 impaired by drugs); or
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1 (b) section 75HE(1) (Failure to comply with
2 requirements relating to assessment of drug
3 impairment).
4 (2) Despite the Sentencing Act 1995 section 39(3) and (4),
5 the court must, instead of or in addition to imposing a
6 fine --
7 (a) order the release of the person; and
8 (b) impose a community based order under the
9 Sentencing Act 1995 with at least a programme
10 requirement as a primary requirement of the
11 order.
12 (3) If the offender is a young person, the court must,
13 instead of or in addition to imposing a fine, make a
14 youth community based order under the Young
15 Offenders Act 1994, imposing at least attendance
16 conditions on the offender.
17 (4) Subsection (3) applies --
18 (a) subject to sections 50, 50A and 50B of the
19 Young Offenders Act 1994; and
20 (b) despite section 74 of that Act.
21 124IF. Sentencing for second or subsequent offence of
22 navigation while impaired by drugs or failure to
23 comply with drug impairment assessment
24 (1) This section applies if a court is sentencing a person
25 who has been convicted of a second or subsequent
26 offence against --
27 (a) section 75CD(1) (Navigation of vessel while
28 impaired by drugs); or
29 (b) section 75HE(1) (Failure to comply with
30 requirements relating to assessment of drug
31 impairment).
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1 (2) The court must, instead of or in addition to imposing a
2 fine, order the release of the person and impose either
3 of the following under the Sentencing Act 1995 --
4 (a) a community based order with at least a
5 supervision requirement and a programme
6 requirement as primary requirements of the
7 order; or
8 (b) an intensive supervision order with at least a
9 programme requirement as a primary
10 requirement of the order.
11 (3) Subsection (2) applies despite the Sentencing Act 1995
12 section 39(3) and (4).
13 (4) If the offender is a young person, the court must,
14 instead of or in addition to imposing a fine --
15 (a) make a youth community based order or an
16 intensive youth supervision order under the
17 Young Offenders Act 1994; and
18 (b) impose at least attendance conditions and
19 supervision conditions on the offender.
20 (5) Subsection (4) applies --
21 (a) subject to sections 50, 50A and 50B of the
22 Young Offenders Act 1994; and
23 (b) despite section 74 of that Act.
24 (6) Subsections (2) and (4) do not apply if the court
25 imposes a custodial sentence on the offender.
26 124IG. Mandatory disqualification
27 (1) This section applies if this Act requires a court
28 sentencing a person for an offence to disqualify the
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1 offender from holding or obtaining a WA marine
2 qualification for --
3 (a) a specified period, or permanently, in relation
4 to the offence; or
5 (b) a period not less than a specified minimum
6 period in relation to the offence; or
7 (c) a period not less than a specified minimum
8 period, and no more than a specified maximum
9 period, in relation to the offence.
10 (2) Regardless of any sentence the court imposes on the
11 offender for the offence, the court --
12 (a) must disqualify the offender for the specified
13 period, or at least the specified minimum period
14 and more than the specified maximum period;
15 and
16 (b) cannot reduce the period of disqualification
17 other than by the period the offender was
18 disqualified by a disqualification notice given
19 to the offender under section 124GA in relation
20 to the offence.
21 (3) Without limiting subsection (2)(b), the specified period
22 of disqualification cannot be reduced in mitigation.
23 (4) This section applies despite any other written law.
24 124IH. Minimum fines
25 Without limiting the Sentencing Act 1995, and despite
26 any other written law, a fine provided for an offence
27 under Part 3A or Part 3B of this Act that is a minimum
28 penalty (however expressed) cannot be reduced in
29 mitigation.
30
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s. 11
1 11. Part IX Division 3 heading inserted
2 Before section 125 insert:
3
4 Division 3 -- General matters
5
6 12. Part X Division 3 inserted
7 At the end of Part X insert:
8
9 Division 3 -- Western Australian Marine Amendment
10 Act 2023
11 138. Offences against repealed section 59
12 (1) In this section --
13 repeal day means the day on which the Western
14 Australian Marine Amendment Act 2023 section 5
15 comes into operation.
16 (2) Despite The Criminal Code section 11, a person may
17 be prosecuted and punished for an offence committed
18 against section 59 before repeal day.
19 139. Transitional regulations
20 (1) In this section --
21 assent day means the day on which the Western
22 Australian Marine Amendment Act 2023 receives the
23 Royal Assent;
24 publication day, for transitional regulations, means the
25 day on which the transitional regulations are published
26 in accordance with the Interpretation Act 1984
27 section 41;
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s. 12
1 specified means specified or described in transitional
2 regulations;
3 transitional matter --
4 (a) means a matter or issue of a transitional nature
5 that arises because of the enactment of the
6 Western Australian Marine Amendment
7 Act 2023; and
8 (b) includes a saving or application matter.
9 (2) Regulations (transitional regulations) may do either or
10 both of the following --
11 (a) make any provision that is necessary or
12 convenient for dealing with a transitional
13 matter; or
14 (b) make any provision that is necessary or
15 convenient in consequence of, or for giving
16 effect to, the enactment of the Western
17 Australian Marine Amendment Act 2023.
18 (3) Transitional regulations may provide that specified
19 provisions of this Act --
20 (a) do not apply to, or in relation to, a specified
21 matter or thing; or
22 (b) apply with specified modifications to, or in
23 relation to, a specified matter or thing.
24 (4) If transitional regulations provide that a specified state
25 of affairs is taken to have existed, or not to have
26 existed, on and from a day that is earlier than
27 publication day but not earlier than assent day, the
28 transitional regulations have effect according to their
29 terms.
page 147
Western Australian Marine Amendment Bill 2023
Part 2 Western Australian Marine Act 1982 amended
s. 12
1 (5) If transitional regulations contain a provision referred
2 to in subsection (4), the provision does not operate so
3 as to --
4 (a) affect in a manner prejudicial to a person (other
5 than the State or an authority of the State) the
6 rights of that person existing before publication
7 day; or
8 (b) impose liabilities on a person (other than the
9 State or an authority of the State) in respect of
10 an act done or omission made before
11 publication day.
12
page 148
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 13
1 Part 3 -- Other Acts amended
2 13. Bail Act 1982 amended
3 (1) This section amends the Bail Act 1982.
4 (2) After Schedule 2 item 3 insert:
5
3A. Western Australian Marine Act 1982
s. 75B(1) Navigation of vessel occasioning death
while under influence of alcohol, a drug
or alcohol and a drug
s. 75B(2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) Navigation of vessel occasioning grievous
bodily harm while under influence of
alcohol, a drug or alcohol and a drug
s. 75BA(2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) Navigation of vessel occasioning bodily
harm while under influence of alcohol, a
drug or alcohol and a drug
s. 75BB(3) Dangerous navigation of vessel
occasioning bodily harm
6
7 14. Community Protection (Offender Reporting) Act 2004
8 amended
9 (1) This section amends the Community Protection (Offender
10 Reporting) Act 2004.
page 149
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 15
1 (2) In section 85A in the definition of serious sexual offence after
2 paragraph (a) insert:
3
4 (iia) the Western Australian Marine Act 1982
5 section 75B(1), 75B(2), 75BA(1),
6 75BA(2), 75BB(1) or 75BB(3); or
7
8 15. The Criminal Code amended
9 (1) This section amends The Criminal Code.
10 (2) In section 279(1) in the Alternative offence delete "59." and
11 insert:
12
13 59 or Western Australian Marine Act 1982 s. 75B(1) or 75B(2).
14
15 (3) In section 280(1) in the Alternative offence delete "59." and
16 insert:
17
18 59 or Western Australian Marine Act 1982 s. 75B(1) or 75B(2).
19
20 (4) In section 284(1) in the definition of conveyance delete
21 "vehicle;" and insert:
22
23 vehicle or vessel;
24
25 (5) In section 284(1) in the definition of drive delete "aircraft and to
26 navigate a vessel." and insert:
27
28 aircraft.
29
page 150
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 16
1 (6) Delete section 284(4).
2 Note: The heading to amended section 284 is to read:
3 Culpable driving (not of motor vehicle or vessel) causing death or
4 grievous bodily harm
5 (7) In section 297(1) in the Alternative offence delete "59." and
6 insert:
7
8 59 or Western Australian Marine Act 1982 s. 75BA(1)
9 or 75BA(2).
10
11 16. Criminal Investigation Act 2006 amended
12 (1) This section amends the Criminal Investigation Act 2006.
13 (2) Delete section 28(2) and insert:
14
15 (2) Subsection (1) does not apply to or in respect of a
16 person to whom a requirement has been made by a
17 police officer under --
18 (a) the Road Traffic Act 1974 section 66, 66B, 66D
19 or 66E; or
20 (b) the Western Australian Marine Act 1982
21 section 75G.
22
23 (3) After section 135(2)(b) insert:
24
25 (ba) the person, having been required to do so by a
26 police officer acting under the Western
27 Australian Marine Act 1982 section 75G, is
28 accompanying a police officer to, or is waiting
29 at, a place.
30
page 151
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 17
1 17. Criminal Law (Mental Impairment) Act 2023 amended
2 (1) This section amends the Criminal Law (Mental Impairment)
3 Act 2023.
4 (2) After Schedule 1 Division 1 Subdivision 5 insert:
5
6 Subdivision 6 -- Offences under Western Australian Marine
7 Act 1982
Item Provision Description of offence
1. s. 75B(1) Navigation of vessel occasioning death while under
influence of alcohol, a drug or alcohol and a drug
2. s. 75B(2) Dangerous navigation of vessel occasioning death
3. s. 75BA(1) Navigation of vessel occasioning grievous bodily
harm while under influence of alcohol, a drug or
alcohol and a drug
4. s. 75BA(2) Dangerous navigation of vessel occasioning
grievous bodily harm
8
9 18. Criminal Law (Mentally Impaired Accused) Act 1996
10 amended
11 (1) This section amends the Criminal Law (Mentally Impaired
12 Accused) Act 1996.
13 (2) After Schedule 1 item 3 insert:
14
4. Western Australian Marine Act 1982
s. 75B(1) Navigation of vessel occasioning
death while under influence of
alcohol, a drug or alcohol and a drug
page 152
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 19
s. 75B(2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) Navigation of vessel occasioning
grievous bodily harm while under
influence of alcohol, a drug or
alcohol and a drug
s. 75BA(2) Dangerous navigation of vessel
occasioning grievous bodily harm
1
2 19. Evidence Act 1906 amended
3 (1) This section amends the Evidence Act 1906.
4 (2) After The Second Schedule Part 2 insert:
5
6 Part 3 -- Offences under the Western Australian
7 Marine Act 1982
Provision Description of offence
s. 75B(1) Navigation of vessel occasioning
death while under influence of
alcohol, a drug or alcohol and a drug
s. 75B(2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) Navigation of vessel occasioning
grievous bodily harm while under
influence of alcohol, a drug or
alcohol and a drug
s. 75BA(2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) Navigation of vessel occasioning
bodily harm while under influence of
alcohol, a drug or alcohol and a drug
page 153
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 20
s. 75BB(3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BD(1) Reckless navigation of vessel
s. 75BD(2) Reckless navigation of vessel in
circumstance of aggravation
s. 75BE(1) Dangerous navigation of vessel
1
2 20. High Risk Serious Offenders Act 2020 amended
3 (1) This section amends the High Risk Serious Offenders Act 2020.
4 (2) After Schedule 1 Division 1 Subdivision 5 insert:
5
6 Subdivision 6 -- Offences under Western Australian Marine
7 Act 1982
Item Provision Description of offence
1. s. 75B(1) Navigation of vessel occasioning death while under
influence of alcohol, a drug or alcohol and a drug
2. s. 75B(2) Dangerous navigation of vessel occasioning death
3. s. 75BA(1) Navigation of vessel occasioning grievous bodily
harm while under influence of alcohol, a drug or
alcohol and a drug
4. s. 75BA(2) Dangerous navigation of vessel occasioning
grievous bodily harm
8
9 21. National Disability Insurance Scheme (Worker Screening)
10 Act 2020 amended
11 (1) This section amends the National Disability Insurance Scheme
12 (Worker Screening) Act 2020.
page 154
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 21
1 (2) At the end of Schedule 1 insert:
2
Western Australian Marine Act 1982
s. 75B(1) Navigation of vessel The offence is committed
occasioning death while with intent to cause death
under influence of alcohol, a
drug or alcohol and a drug
s. 75B(2) Dangerous navigation of The offence is committed
vessel occasioning death with intent to cause death
s. 75BA(1) Navigation of vessel The offence is committed
occasioning grievous bodily with intent to cause grievous
harm while under influence of bodily harm to a child or a
alcohol, a drug or alcohol and vulnerable person
a drug
s. 75BA(2) Dangerous navigation of The offence is committed
vessel occasioning grievous with intent to cause grievous
bodily harm bodily harm to a child or a
vulnerable person
3
4 (3) At the end of Schedule 2 insert:
5
Western Australian Marine Act 1982
s. 75B(1) Navigation of vessel The offence causes death but
occasioning death while without intent to do so
under influence of alcohol, a
drug or alcohol and a drug
s. 75B(2) Dangerous navigation of The offence causes death but
vessel occasioning death without intent to do so
page 155
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 22
s. 75BA(1) Navigation of vessel The offence causes grievous
occasioning grievous bodily bodily harm but without
harm while under influence of intent to cause grievous
alcohol, a drug or alcohol and bodily harm to a child or a
a drug vulnerable person
s. 75BA(2) Dangerous navigation of The offence causes grievous
vessel occasioning grievous bodily harm but without
bodily harm intent to cause grievous
bodily harm to a child or a
vulnerable person
1
2 22. Sentencing Act 1995 amended
3 (1) This section amends the Sentencing Act 1995.
4 (2) In section 45(5):
5 (a) after paragraph (a)(i) insert:
6
7 (ia) disqualify, under the Western Australian
8 Marine Act 1982, the offender from
9 holding or obtaining a WA marine
10 qualification as defined in section 3(1)
11 of that Act;
12
13 (b) after paragraph (b) insert:
14
15 (ba) the operation of any provision in the Western
16 Australian Marine Act 1982 relating to the
17 cancellation of, or disqualification from holding
18 or obtaining, a WA marine qualification as
19 defined in section 3(1) of that Act;
20
page 156
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 22
1 (3) In section 107(1) and (3) before "marine qualification" (each
2 occurrence) insert:
3
4 WA
5
6 (4) After section 107(4) insert:
7
8 (4A) This section does not affect the right or duty of a court
9 to disqualify, under the Western Australian Marine
10 Act 1982, a person from holding or obtaining a WA
11 marine qualification.
12
13 (5) In section 107(5) delete the definition of marine qualification.
14 (6) In section 107(5) insert in alphabetical order:
15
16 WA marine qualification has the meaning given in the
17 Western Australian Marine Act 1982 section 3(1);
18
19 (7) After Schedule 1A Part 1 item 7 insert:
20
8. Western Australian Marine Act 1982
s. 75B(1) and (2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) and (2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) and (3) Dangerous navigation of vessel
occasioning bodily harm -- if the
offender is liable to imprisonment
for 7 years
21
page 157
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 23
1 (8) After Schedule 1A Part 2 item 9 insert:
2
10. Western Australian Marine Act 1982
s. 75BB(1) and (3) Dangerous navigation of vessel
occasioning bodily harm -- if the
offender is not liable to
imprisonment for 7 years
3
4 23. Working with Children (Screening) Act 2004 amended
5 (1) This section amends the Working with Children (Screening)
6 Act 2004.
7 (2) In Schedule 2 under the heading The Criminal Code in the items
8 for section 284(3)(c) and 284(3)(d) delete "vehicle)" and insert:
9
10 vehicle or vessel)
11
12 (3) At the end of Schedule 2 insert:
13
Western Australian Marine Act 1982
s. 75B(1) and Dangerous navigation of
(2) vessel occasioning death
s. 75BA(1) Dangerous navigation of
and (2) vessel occasioning grievous
bodily harm
14
15 24. Young Offenders Act 1994 amended
16 (1) This section amends the Young Offenders Act 1994.
page 158
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 24
1 (2) At the end of Schedule 1 insert:
2
4. Western Australian Marine Act 1982
s. 75BD(1) Reckless navigation of vessel
s. 75BE(1) Dangerous navigation of vessel
s. 75BF Careless navigation of vessel
s. 75C(1) Navigation or attempted operation of
vessel while under influence of
alcohol or drugs
s. 75CA(1) Navigation or attempted operation of
vessel while under influence of
alcohol and drugs
s. 75CD(1) Navigation or attempted operation of
vessel while impaired by drug
s. 75D(1) Navigation or attempted operation of
vessel while BAC is 0.05 or above
s. 75DA(1) Navigation or attempted operation of
vessel while BAC is 0.08 or above
s. 75DB(1) Navigation of vessel while
prescribed illicit drug present in
body
s. 75DC(1) Navigation of vessel while BAC is
0.05 or above and prescribed illicit
drug is present in body
s. 75DD(1) Navigation of vessel while BAC is
0.08 or above and prescribed illicit
drug is present in body
s. 75H(1) Failure to comply with requirement
relating to preliminary breath test,
preliminary oral fluid test or
boarding or moving vessel
s. 75HB(1) Failure to comply with requirement
relating to breath analysis, blood
page 159
Western Australian Marine Amendment Bill 2023
Part 3 Other Acts amended
s. 24
sample or stop vessel or navigate to
specified place
s. 75HC(1) Failure to comply with requirement
relating to incident occasioning
death, grievous bodily harm or
bodily harm
s. 75HD(1) Failure to comply with requirement
relating to oral fluid sample for drug
testing or blood sample for analysis
s. 75HE(1) Failure to comply with requirements
relating to assessment of drug
impairment
s. 75HG(1) Failure to comply with drug testing
requirement when BAC of 0.05 or
above
s. 75HH(1) Failure to comply with drug testing
requirement when BAC of 0.08 or
above
s. 75HI(1) Failure to comply with drug testing
requirement when BAC of 0.15 or
above
1
2 (3) At the end of Schedule 2 insert:
3
4. Western Australian Marine Act 1982
s. 75B(1) Navigation of vessel occasioning
death while under influence of
alcohol, a drug or alcohol and a drug
s. 75B(2) Dangerous navigation of vessel
occasioning death
s. 75BA(1) Navigation of vessel occasioning
grievous bodily harm while under
influence of alcohol, a drug or
alcohol and a drug
page 160
Western Australian Marine Amendment Bill 2023
Other Acts amended Part 3
s. 24
s. 75BA(2) Dangerous navigation of vessel
occasioning grievous bodily harm
s. 75BB(1) Navigation of vessel occasioning
bodily harm while under influence of
alcohol, a drug or alcohol and a drug
s. 75BB(3) Dangerous navigation of vessel
occasioning bodily harm
s. 75BC(1) Careless navigation of vessel
occasioning death, grievous bodily
harm or bodily harm
1
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