Marine Safety Act 1998 No 121
Historical version for 1 January 2011 to 6 January 2011 (accessed 25 November 2014 at 04:46) Current version
Part 5

Part 5 Requirements for vessels

Division 1 Unsafe vessels

44   Definition of “unsafe vessel”

A vessel is an unsafe vessel for the purposes of this Division if, because of:
(a)  the condition or equipment of the vessel, or
(b)  the manner or place in which cargo or equipment on the vessel is stowed or secured, or
(c)  the nature of the cargo, or
(d)  the overloading of the vessel with persons or cargo (including the submergence of the vessel’s load line), or
(e)  the number or qualifications of its crew, or
(f)  any other reason,
the operation of the vessel is likely to endanger any person.

45   Owner or master not to operate unsafe vessel

(1)  The owner of a vessel must not operate the vessel if the owner knows, or ought reasonably to know, that it is an unsafe vessel.

Maximum penalty: 400 penalty units or 2 years imprisonment, or both.

(2)  The master of a vessel must not operate a vessel if the master knows, or ought reasonably to know, that it is an unsafe vessel.

Maximum penalty: 400 penalty units or 2 years imprisonment, or both.

(3)  The fact that an unsafe vessel has been detained under this Division does not prevent a prosecution for an offence against this section.

46   Detention of unsafe vessels

(1)  The Minister may order a vessel to be provisionally detained if it appears to the Minister to be an unsafe vessel. The vessel may not be provisionally detained unless it is in State waters or in any other part of the State.
(2)  When a vessel has been ordered to be provisionally detained the following provisions apply:
(a)  The Minister must, as soon as practicable, cause to be served on the master or owner of the vessel a notice of the detention and a written statement of the reasons for the detention.
(b)  The Minister is required to appoint an investigator to investigate the vessel in accordance with Part 8 and report to the Minister.
(c)  The Minister may, on receipt of the report:
(i)  order its release, or
(ii)  if of the opinion that it is an unsafe vessel, order it to be finally detained either absolutely or until the performance of such conditions as the Minister considers necessary to ensure that the vessel is not an unsafe vessel.
(d)  The Minister may at any time (and without any report) order the release of the vessel (with or without conditions) if satisfied that the vessel is not an unsafe vessel.
(e)  Before an order for final detention is made, the Minister must cause a copy of the report to be served on the master or owner of the vessel.
(f)  The Minister must cause a copy of an order for final detention to be served on the owner and master of the vessel (if their identity and whereabouts are known to the Minister).
(3)  When any order for the final detention of a vessel is made, the vessel must not be released until the Minister is satisfied that its further detention is no longer necessary, and orders its release.
Note. Section 134 provides that an instrument required by this section to be served on the owner or master of a vessel may be served instead on the agent of the vessel.

47   Operating detained vessel

(1)  The owner of a vessel must not cause or allow the vessel to be taken on a voyage if the owner knows that the vessel has been detained under this Division and has not been duly released.

Maximum penalty: 100 penalty units or 2 years imprisonment, or both.

(2)  The master of a vessel must not take the vessel on a voyage if the master knows that the vessel has been detained under this Division and has not been duly released.

Maximum penalty: 100 penalty units or 2 years imprisonment, or both.

(3)  An agent for a vessel that has been detained under this Division and has not been duly released must not assist the owner or master of the vessel to contravene this section.

Maximum penalty: 100 penalty units or 2 years imprisonment, or both.

(4)  A person must not obstruct or fail to comply with any reasonable requirement of a person appointed by the Minister to take charge of a vessel detained under this Division in connection with the exercise of that person’s functions.

Maximum penalty: 20 penalty units.

48   Costs of detention

If a vessel is detained under this Division without reasonable cause, the State or the Minister is liable to pay the owner of the vessel compensation for any loss or damage resulting from the detention.

Division 2 Vessel registration

49   Vessels requiring registration

(1)  All commercial and recreational vessels that operate in State waters are required to be registered under this Act unless exempt from registration.
(2)  A vessel that is required to be registered under this Act is a registrable vessel for the purposes of this Act.

50   Vessels exempt from registration

(1)  A vessel (other than a recreational vessel, a commercial vessel that is an Australian fishing vessel or a pleasure craft or an Australian fishing vessel) is exempt from registration under this Act if the vessel is in State waters and is proceeding on an interstate voyage or an overseas voyage. An Australian fishing vessel is exempt from registration under this Act if it is in State waters and is proceeding on an overseas voyage.
(2)  A vessel is exempt from registration under this Act if the vessel:
(a)  is not ordinarily operated in State waters, and
(b)  has been in State waters for less than 3 months, and
(c)  is registered under the law of another State or a Territory, or of another country, and is operated in accordance with that law.
(3)  A vessel is exempt from registration under this Act if it is of a class exempted by the regulations.
(4)  A vessel is exempt from registration under this Act if the Minister exempts it from registration by order in writing given to the owner or master of the vessel.

51   Offence to operate unregistered vessel

(1)  The owner of a registrable vessel must not operate the vessel in State waters unless the vessel is registered under this Act and the owner is the holder of the vessel registration certificate.
(2)  The master of a registrable vessel must not operate the vessel in State waters if the vessel is not registered under this Act or is being operated in contravention of any conditions of its vessel registration certificate. It is a defence to a prosecution under this subsection if the master establishes that he or she did not have any reasonable cause to believe that the vessel was not registered or was being so operated.

Maximum penalty: 75 penalty units.

Note. The registration of a vessel is a marine safety licence—Part 4 deals with the grant of, and other matters relating to, any such licence. A contravention of the conditions of such a licence by the owner is an offence—see section 32.

52   Additional grounds for refusal, suspension or cancellation of registration

In addition to any other ground on which the Minister may refuse to register a vessel or may suspend or cancel its registration, the Minister may do so on the following grounds:
(a)  the Minister may do so on environmental grounds, that is, the vessel causes or will cause unreasonable noise, air or other pollution because of its design, construction or equipment,
(b)  the Minister may do so on aesthetic grounds, that is, the vessel is or will be an eyesore in the port or other area in which it operates or is moored or in which it is proposed to operate or be moored.

Division 3 Survey certificates and other requirements for commercial vessels

53   Vessels to which this Division applies

(1)  This Division applies to commercial vessels operating in State waters.
(2)  This Division extends to:
(a)  a commercial vessel that is an Australian fishing vessel or a pleasure craft while it is operating outside State waters, and
(b)  any other commercial vessel while it is operating outside State waters but only if it is proceeding on a voyage that is not an overseas or interstate voyage.

53A   Offence to operate commercial vessel not complying with certain requirements

(1)  The owner of a commercial vessel must not operate the vessel unless:
(a)  the vessel complies with the requirements prescribed by the regulations relating to the design, construction or equipment of any such vessel, and
(b)  if required by the regulations, has a survey certificate under this Act.

Maximum penalty: 100 penalty units.

(2)  The master of a commercial vessel must not operate the vessel unless:
(a)  the vessel complies with the requirements prescribed by the regulations relating to the design, construction or equipment of any such vessel, and
(b)  if required by the regulations, has a survey certificate under this Act.

Maximum penalty: 100 penalty units.

(3)  It is a defence to a prosecution under subsection (2) if the master establishes that he or she did not have any reasonable cause to believe that:
(a)  the vessel did not comply with the requirements referred to in subsection (2) (a) or did not have a survey certificate under this Act, as the case may be, or
(b)  any condition of an exemption granted in respect of the vessel for the purposes of this section was not being complied with at the relevant time.
Note. Section 139 (4) provides that an exemption granted by the regulations or by order of the Minister does not apply during any period that any condition to which the exemption is subject is not complied with.
(4)  The regulations may exempt any class of vessels from any of the requirements of subsections (1) and (2).
(5)  The Minister may exempt a vessel from any of the requirements of subsections (1) and (2) by order in writing given to the owner or master of the vessel or by a condition of the vessel’s registration under this Act.
Note. A survey certificate for a vessel is a marine safety licence—Part 4 deals with the grant of, and other matters relating to, any such licence. A contravention of the conditions of such a licence by the holder is an offence—see section 32.

54   Grant of survey certificate and survey schedule for commercial vessels

(1)  A survey certificate is not to be granted for a vessel unless the Minister is satisfied that the vessel complies with relevant requirements as to design, construction and equipment.
(2)  (Repealed)
(3)  The Minister is to issue a survey schedule with a survey certificate and require the vessel, as a condition of the survey certificate, to be inspected in accordance with that schedule to ensure that it continues to comply with relevant requirements and to be safe to operate.

55   (Repealed)

56   Regulations relating to commercial vessels—construction, survey and other matters

The regulations may make provision for or with respect to the following:
(a)  the construction, design, equipment, deck or load lines, survey, identification of and inspection of, and any other matter relating to, commercial vessels to which this Division applies,
(b)  the manner in which any matter referred to in paragraph (a) is to be determined,
(c)  applications for determinations or approvals under this Act in respect of a matter referred to in paragraph (a), and appeals and reviews of decisions made in respect of such applications (including enabling a person to apply for a review of any such decision to the Administrative Decisions Tribunal),
(d)  fees in relation to any such application, appeal or review.

Division 4 Certificates of competency for master and specified crew of commercial vessels and safety manning

57   Vessels to which this Division applies

(1)  This Division applies to commercial vessels operating in State waters.
(1A)  This Division extends to:
(a)  a commercial vessel that is an Australian fishing vessel or a pleasure craft while it is operating outside State waters, and
(b)  any other commercial vessel while it is operating outside State waters but only if it is proceeding on a voyage that is not an overseas or interstate voyage.
(2)  This Division does not apply to:
(a)  vessels while hired or used for recreational or sporting purposes and not hired or used for any commercial purpose, or
(b)  vessels exempted by the regulations, or
(c)  vessels exempted by the Minister by order in writing given to the owner or master of the vessel or by a condition of its registration under this Act.

58   Persons required to hold certificates of competency

The following persons are required to hold an appropriate certificate of competency:
(a)  the master of a commercial vessel to which this Division applies,
(b)  any member of the crew of such a vessel who is required to do so by the regulations.

59   Offence for failure to hold appropriate certificate of competency

(1)  A person must not operate a commercial vessel to which this Division applies as its master if the person is required to hold a certificate of competency and the person does not hold an appropriate certificate under this Act.
(2)  A person must not act as a crew member of such a commercial vessel if the person is required to hold a certificate of competency and the person does not hold an appropriate certificate under this Act.
(3)  The owner of a vessel must not operate the vessel if this section is contravened by its operation.
(4)  The master of a vessel must not operate the vessel if this section is contravened by its operation. It is a defence to a prosecution under this subsection if the master establishes that he or she did not have any reasonable cause to believe that the vessel was being so operated.

Maximum penalty: 100 penalty units.

Note. A certificate of competency is a marine safety licence—Part 4 deals with the grant of, and other matters relating to, any such licence.

59A   Offences committed by disqualified holders of certificates of competency

(1)  A person who is disqualified by or under any Act from holding or obtaining a certificate of competency must not:
(a)  operate a commercial vessel to which this Division applies during the period of disqualification, or
(b)  make an application for a certificate of competency during the period of disqualification and in respect of the application state his or her name falsely or incorrectly or omit to mention the disqualification.

Maximum penalty: 100 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 125 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(2)  Subsection (1) does not apply to the operation of a vessel in circumstances prescribed by the regulations.
(3)  An offence under this section is a second or subsequent offence for the purposes of this section if it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1) within the period of 5 years immediately before the person is convicted of the offence.
(4)  If a person is convicted by a court of an offence under subsection (1), the person:
(a)  is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a certificate of competency, and
(b)  may also be disqualified, for such additional period as the court may order, from holding a certificate of competency.
(5)  The disqualification referred to in subsection (4) is in addition to any penalty imposed for the offence.
(6)  Subsection (1) applies to a person who is disqualified from holding a certificate of competency by a court in Australia or under any law in this State or another State or Territory.
(7)  In this section, the relevant disqualification period is:
(a)  in the case of a first offence under subsection (1)—12 months, or
(b)  in the case of a second or subsequent offence under subsection (1)—2 years.

60   Crewing of commercial vessels to which this Division applies

The regulations may make provision for or with respect to the following:
(a)  the crew to be carried in a commercial vessel to which this Division applies,
(b)  the manner in which the number and type of crew to be carried in a commercial vessel to which this Division applies are to be determined,
(c)  the constitution of safety crewing committees and the functions to be exercised by such committees,
(d)  applications for determinations or approvals under this Act relating to the crew to be carried in a commercial vessel to which this Division applies, and appeals and reviews of decisions made in respect of such applications (including enabling a person to apply for a review of any such decision to the Administrative Decisions Tribunal),
(e)  fees in relation to any such application, appeal or review,
(f)  the keeping of records in relation to the crew carried in a commercial vessel to which this Division applies and the production and inspection of any such records.

61   Detention of vessels operated contrary to this Division

A vessel that is operated in contravention of this Division is taken to be an unsafe vessel for the purposes of section 46 (Detention of unsafe vessels) and may be detained under that section.

Division 5 Boat driving licences for power-driven recreational vessels

62   Vessels to which Division applies

(1)  This Division applies to any power-driven recreational vessels operating in or from State waters, other than vessels exempted by the regulations.
(2)  In this Division, recreational vessel includes a commercial vessel while hired or used for recreational or sporting purposes and not hired or used for any commercial purpose.

63   Offence to operate recreational vessel without appropriate boat driving licence

A person must not operate a recreational vessel to which this Division applies as its master unless the person is the holder of a boat driving licence under this Act of an appropriate type which authorises the person to operate the vessel.

Maximum penalty: 15 penalty units.

Note. A boat driving licence is a marine safety licence—Part 4 deals with the grant of, and other matters relating to, any such licence.

63A   Offences committed by disqualified holders of boat driving licences

(1)  A person who is disqualified by or under any Act from holding or obtaining a boat driving licence under this Act must not:
(a)  operate a recreational vessel to which this Division applies as its master during the period of disqualification, or
(b)  make an application for a boat driving licence under this Act during the period of disqualification and in respect of the application state his or her name falsely or incorrectly or omit to mention the disqualification.

Maximum penalty: 100 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 125 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(2)  Subsection (1) does not apply to the operation of a vessel in circumstances prescribed by the regulations.
(3)  An offence under this section is a second or subsequent offence for the purposes of this section if it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1) within the period of 5 years immediately before the person is convicted of the offence.
(4)  If a person is convicted by a court of an offence under subsection (1), the person:
(a)  is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a boat driving licence under this Act, and
(b)  may also be disqualified, for such additional period as the court may order, from holding a boat driving licence under this Act.
(5)  The disqualification referred to in subsection (4) is in addition to any penalty imposed for the offence.
(6)  Subsection (1) applies to a person who is disqualified from holding a boat driving licence by a court in Australia or under any law in this State or another State or Territory.
(7)  In this section, the relevant disqualification period is:
(a)  in the case of a first offence under subsection (1)—12 months, or
(b)  in the case of a second or subsequent offence under subsection (1)—2 years.

64   Exemption from requirement to hold boat driving licence

(1)  A person is exempt from the requirement to hold a boat driving licence if the person:
(a)  is not ordinarily resident in this State, and
(b)  has been operating power-driven recreational vessels in State waters for less than 3 months, and
(c)  is authorised under the law of another State or a Territory to operate the vessel concerned (being an authorisation that is not suspended) and is operating the vessel in accordance with the conditions of that authorisation.
(1A)  Subsection (1) does not exempt a person from the requirement to hold a boat driving licence if:
(a)  the person holds a boat driving licence that is suspended, or
(b)  the person has held a boat driving licence that has been cancelled and the person is disqualified from applying for another such licence.
(2)  A person is exempt from the requirement to hold a boat driving licence if the person:
(a)  is the holder of a certificate of competency as a master, first mate, second mate or coxswain (or other crew member prescribed by the regulations) under this Act, or
(b)  is exempted by the regulations, or
(c)  is exempted by the Minister by order in writing given to the person.

Division 6 Miscellaneous provisions relating to vessels

65   Recognised marine safety licences

(1)  This section applies to a marine safety licence that is a vessel registration certificate, a survey certificate or a certificate of competency required to be held by this Part.
(2)  A marine safety licence under this Act may take the form of the grant of recognition for a marine safety licence (or similar licence) granted under the law of the Commonwealth, of another State or a Territory or of another country.
(3)  In that case:
(a)  a reference in this Act to the grant of the relevant marine safety licence is a reference to the grant of recognition of the licence, and
(b)  a reference in this Act to the cancellation or suspension of the relevant marine safety licence is a reference to the withdrawal of recognition indefinitely or for a period, and
(c)  a reference in this Act to the disqualification of the holder of the relevant marine safety licence includes a reference to the disqualification of the person from having a licence recognised.

66   Mutual recognition of marine safety licences

(1)  The regulations may provide for automatic recognition for any marine safety licence to which section 65 applies.
(2)  Any such recognition is subject to compliance with the conditions of the licence and of any law of the jurisdiction in which the licence was issued that relates to authority conferred by the licence.

67   Regulation of marine safety equipment or facilities

The regulations may make provision for or with respect to the following:
(a)  the installation or carriage on vessels of marine safety equipment or facilities,
(b)  the wearing of safety equipment by persons on vessels or engaged in activities in or over the water.

68   Regulation of design and construction of recreational vessels

The regulations may make provision for or with respect to the design and construction of recreational vessels.

68A   Regulations relating to builders plates for vessels

(1)  Regulations may be made for or with respect to builders plates to be fixed on vessels.
(2)  Without limiting the generality of subsection (1), the regulations may make provision for or with respect to the following:
(a)  prohibiting or regulating the sale or supply of vessels in New South Wales without builders plates,
(b)  the information to be included on builders plates for vessels, the form of such plates and the manner in which they are to be fixed to vessels,
(c)  the persons who may fix builders plates to vessels,
(d)  the alteration and removal of builders plates.

69   Regulation of passengers

The regulations may make provision for or with respect to:
(a)  the maximum number of passengers or other persons to be carried on vessels, or
(b)  the conduct of passengers on vessels, including the removal of passengers from vessels.

70   Vessel identification etc

The regulations may require identifying and other information to be displayed on vessels (including the display of particulars of registration of vessels or the maximum carrying capacity of vessels).
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