Part 8 Marine investigation and enforcement
(1) In this Part:Chief Investigator means the Chief Investigator of the Office of Transport Safety Investigations appointed under section 45 of the Transport Administration Act 1988.
ferry has the same meaning as it has in the Passenger Transport Act 1990.
incompetence of the holder of a marine safety licence includes the inefficient performance of any lawful duty required of the holder of that licence.
marine accident means any of the following events involving a vessel operating in navigable waters:
(a) the loss of life of, or injury to, any person on board the vessel,(b) the loss of a person from the vessel,(c) the loss of life or injury to a person that is caused by the vessel,(d) the loss, or presumed loss, of the vessel (including the sinking or abandonment of the vessel),(e) the capsizing, grounding or flooding of the vessel,(f) the collision of the vessel with another vessel or with any object,(g) the vessel being disabled at sea (in any case in which it requires assistance),(h) any fire on board the vessel,(i) any damage being caused to the vessel (including any structural failure),(j) any damage to the environment caused by the vessel or by any substance on, or discharged from, the vessel,(k) any incident that causes danger of any of the above,but does not include anything excluded from this definition by the regulations.misconduct by the holder of a marine safety licence includes:
(a) carelessness in carrying out any lawful duty required of that holder, or(b) carrying out any duty while under the influence of alcohol or any other drug, or(c) any other act or omission that indicates that the person is not a fit and proper person to act in the capacity required by the licence.public passenger service has the same meaning as it has in the Passenger Transport Act 1990.
(2) In this Part, a reference to the holder of a marine safety licence includes a reference to a person whose licence is suspended or cancelled or has otherwise ceased to have effect.
This Part extends, in the case of the holder of a marine safety licence, to the investigation of a marine accident or any incompetence or misconduct by the holder, even though it occurred anywhere outside the State.
96 Appointment of authorised officers (other than harbour masters and police officers)
(1) The Minister may appoint, as an authorised officer for the purposes of the marine legislation, any person (including a class of persons) who is a member of staff of the Maritime Authority, a Port Corporation, a government department or other public or local authority or the Chief Investigator or a person appointed under section 65 (1) of the Transport Administration Act 1988.(2) The authorisation of such a person as an authorised officer can be given generally, or subject to conditions and restrictions or only for limited purposes. If the authorisation is subject to conditions or restrictions or only for limited purposes, nothing in this Act authorises or requires the authorised officer to act in contravention of the condition or restriction or for other purposes.Note. An authorised officer is defined in section 4 as a harbour master, a police officer or a person appointed under this section.
97 Identity cards for authorised officers
(1) The Minister is required to give an identity card to each authorised officer appointed under section 96 (including an investigator appointed under Division 3).(2) An identity card is to be in a form approved by the Minister.(3) An authorised officer when exercising the functions of the officer is required to produce his or her identity card if requested to do so by an affected person. This subsection does not apply if the officer gives a direction by radio or other communication device.(4) A person who has been issued with an identity card must return it to the Minister on demand.Maximum penalty: 10 penalty units.
(5) Until an authorised officer is given an identity card, the officer’s instrument of appointment is taken to be an identity card for the purposes of subsection (3).
Division 2 Duties of masters and owners in case of marine accidents
98 Requirements of masters in case of accident involving vessels
(1) The master of a vessel involved in a marine accident involving 2 or more vessels or the death of or injury to any person:(a) must stop the vessel, and(b) must give any necessary assistance that the master is able to give to any person injured or vessel damaged in the accident.(2) The master of a vessel involved in a marine accident, if required to do so by any person having reasonable grounds for so requiring:(a) must produce any marine safety licence required under this Act to be held by the master, and(b) must give particulars of his or her name and place of residence, the name and address of the owner of the vessel, the name of the vessel and any distinguishing number that is, or is required to be, displayed on the vessel by law.(3) The master of a vessel involved in a marine accident, if required so to do by any authorised officer, must give such particulars of the marine accident as the officer requires and the master is able to give.Note. A failure to comply with the requirements of this section or of any other provision of this Division does not constitute an offence if there was a reasonable excuse for that failure—see section 102.
99 Duty to report marine accidents to Minister
(1) When a marine accident occurs in connection with a vessel, the master of that vessel (and the owner of the vessel if aware of the accident) must send a report to the Minister containing particulars of the accident as soon as practicable by the quickest means available.(2) A report is not required to be sent:(a) if a report of the marine accident has already been sent by the owner or master, or(b) in any other case prescribed by the regulations.(3) After receiving a report of a marine accident, the Minister may require further information from the owner or master of a vessel involved in the accident to determine whether an investigation should be ordered into the marine accident.
100 Marine accident particulars
The particulars of a marine accident required to be furnished or reported under this Division are as follows:(a) the time, place and nature of the marine accident,(b) the name and distinguishing number (if any) of each vessel involved in the marine accident,(c) the name and address of each person who was involved in or was a material witness to the marine accident,(d) any loss of life or the estimated extent of any injury or damage resulting from the marine accident.
The owner or master of a vessel involved in a marine accident (or other person concerned in the accident) must take all reasonable measures to preserve any evidence relating to the marine accident (including nautical charts, log books and other documents) if he or she has reason to believe that the evidence may be required for an investigation into the marine accident.Note. The Interpretation Act 1987 provides that documents include computer and other electronic records.
A person who:(a) without reasonable excuse fails to comply with any provision or requirement of this Division, or(b) furnishes any particulars or information under this Division that the person knows to be false or misleading,is guilty of an offence.Maximum penalty: 50 penalty units.
Division 3 Investigation of marine accidents and other marine safety matters
(1) The Minister may order an investigation into any of the following:(a) a marine accident that has been reported under Division 2 or that the Minister believes may have occurred,(b) any situation that has the potential to cause marine accidents,(c) any alleged incompetence or misconduct of the holder of a marine safety licence,(d) a vessel that has been provisionally detained as an unsafe vessel,(e) any incident in connection with a port facility that has caused, or has the potential to cause, a danger to life or serious damage to property.(2) An inquiry may be carried out and a report provided under this section whether or not:(a) an investigation is being, or has been, conducted under the Passenger Transport Act 1990 or any other Act or law relating to the same matter, or(b) the matter is or may be subject to any criminal or civil proceedings.
104 Principal purposes of investigation
The principal purposes of an investigation under this Division are:(a) to determine the circumstances of or concerning the marine accident or other incident as they affect marine safety, and(b) to make recommendations to prevent the recurrence of any similar marine accident or other incident.
105 Appointment of investigator
(1) The Minister may appoint as the investigator for the purposes of an investigation:(a) an authorised officer, or(b) any other person possessing qualifications or experience relevant to the investigation.(1A) If an investigation concerns or is related to a public passenger service provided by a ferry, the Minister may appoint the Chief Investigator as the investigator or any person of a kind referred to in subsection (1).(2) The Minister may appoint 2 or more persons as joint investigators for the purposes of an investigation.(3) An investigator is subject to the control and direction of the Minister, except in relation to the contents of any report made by the investigator.
For the purpose of conducting an investigation, an investigator is an authorised officer and has all the powers and other functions of an authorised officer under this Part.
(1) An investigator is to conduct the investigation in such manner as the investigator considers appropriate having regard to the principal purposes of the investigation.(2) An investigation may extend to all relevant events and circumstances preceding the marine accident or other incident.(3) At any time during the course of an investigation the Minister may determine that the investigation be discontinued and that a report be prepared and submitted by the investigator.(4) For the purposes of an investigation, the investigator may rely on any evidence relating to the matter under investigation given in any criminal or civil proceedings or in any coronial or other judicial inquiry.
108 Report to Minister of investigation
(1) On the completion of the investigation, the investigator must prepare and submit a report to the Minister.(2) The report must include:(a) findings as to the facts of the marine accident or other incident, and where the facts cannot be established with certainty, an opinion as to the most probable facts, and(b) in the case of a marine accident, the cause or most probable cause of the accident, and(c) any observations and recommendations to prevent the recurrence of similar marine accidents or incidents that the investigator considers should be made.(3) The investigator may, at any time during an investigation, prepare an interim report and submit it to the Minister.
109 Representations by persons affected by report
(1) If a report, or any part of a report, relates to a person’s affairs to a material extent, the investigator must, if it is reasonable to do so, serve that person with a copy of the report or the relevant part of that report.(2) Any such person may, within 14 days after receiving it, make written representations relating to the report or the relevant part of the report to the investigator.(3) The investigator is to consider any such representations.(4) The investigator:(a) may make further investigations and:(i) amend the report, or(ii) make no change to the report, and(b) is to notify the person who made the representations of the result of the person’s representations, and(c) is to submit a final report to the Minister (setting out the substance of the representations and the conclusions and action taken by the investigator with respect to them).
110 Suspension of marine safety licence pending investigation
(1) If the Minister has ordered an investigation under this Division that involves any alleged incompetence or misconduct of the holder of a marine safety licence, the Minister may suspend the licence pending the investigation and determination of the matter if the Minister has reason to believe that it would be dangerous for the holder of the licence to continue the activities authorised by the licence.(2) A suspension under this section may not exceed 14 days.(3) The Minister may only extend the suspension beyond that period if authorised to do so by order of a Magistrate. A Magistrate may, on application by the Minister, make such an order if satisfied there is reasonable cause to do so.
111 Action by Minister following report of investigation
(1) The Minister may take any action that is available to the Minister in connection with a report submitted by an investigator.(2) In particular, the Minister may do any of the following:(a) take no action,(b) take action to improve marine safety procedures,(c) reprimand the holder of a marine safety licence for any incompetence or misconduct,(d) suspend or cancel a marine safety licence, or impose conditions on any such licence, for any incompetence or misconduct of the holder,(e) downgrade a marine safety licence for any incompetence or misconduct of the holder (that is, replace the licence held by the holder with a licence of a lower class),(f) inform any other marine safety authority that has granted any similar licence to the person concerned of the report and action taken by the Minister on the report,(g) recommend to the Director of Public Prosecutions or other law enforcement agency that criminal or other legal proceedings be taken against a person,(h) in the case of an investigation concerning or related to a public passenger service provided by a ferry, inform the Maritime Authority or the Chief Investigator of the report and the action taken by the Minister on the report.(3) Before taking action under this section, the Minister may conduct a further investigation of the matter or refer the matter to the same or a different investigator for further investigation and report under this Division.(4) Any action taken under this section may extend to more than one marine safety licence held by a person.(5) The Minister must give written notice to the holder of a marine safety licence of any action taken under this section against that holder, together with a copy of the final investigation report.
(1) The investigator may, at any time during the course of an investigation, make recommendations to the Minister. The Minister may cause them to be made public if the Minister considers that it is in the interests of marine safety to do so.(2) The Minister may publicly release a report (or parts of any report) made to the Minister by an investigator.(3) The Minister is not to publicly release a report or any part of it if it might prejudice the rights of any person in any criminal proceedings instituted in connection with the matter.
Civil proceedings may not be brought against the State, the Minister, an investigator or any person who has supplied any information to the Minister or to an investigator in connection with an investigation under this Division in respect of any matter contained in that information that is or is alleged to be defamatory or a breach of confidence.
Division 4 Investigative powers of authorised officers
(1) This Division applies to the following investigations:(a) investigations to determine whether the marine legislation has been or may be contravened,(b) investigations under Division 3.(2) A power conferred by this Division in respect of a vessel (other than a power to detain the vessel) may be exercised for the purpose of conducting random investigations of compliance with marine safety requirements.(3) This Division does not limit any function exercisable under the Marine Pollution Act 1987 in connection with an investigation to which this Division applies.
115 Power to stop and board vessels
(1) For the purpose of conducting an investigation, an authorised officer may at any reasonable time:(a) stop any vessel, and(b) board any vessel, and(c) enter any land for the purpose of boarding any vessel (other than land used for residential purposes), and(d) take along any assistants or equipment required to assist the investigation.(2) For the purpose of boarding the vessel, the authorised officer may direct the person operating the vessel to manoeuvre it in a specified manner or to a specified place or to secure it in a specified manner.
(1) For the purpose of conducting an investigation, an authorised officer may, at any reasonable time in the daytime or at any time when work is carried on there, enter any premises (other than premises used for residential purposes).(2) The authorised officer is to give the occupier of premises reasonable notice of an intention to enter premises under this section unless:(a) the entry is made with the consent of the occupier, or(b) the entry is made to a part of the premises that is open to the public, or(c) the entry is required urgently, or(d) the giving of notice would defeat the purpose for which it is intended to exercise the power of entry.(3) In this section, premises includes any vehicle.
117 General investigative powers
For the purposes of conducting an investigation, the authorised officer may do any of the following on any vessel boarded or premises entered under this Division (or in connection with any vessel stopped but not boarded under this Division):(a) search the vessel or premises,(b) make inquiries of any person,(c) take measurements and photographs and make recordings or gather information or evidence,(d) examine or test any equipment or substance,(e) take possession of any equipment or substance and detain it:(i) for examination and testing, or(ii) to ensure that it is available for use in evidence in any proceedings for an offence,(f) require the production of any relevant document, and take possession or copies of, or examine, the document or any entry in that document,(g) require any person to give the investigator any facilities and assistance within that person’s control that are necessary to facilitate the conduct of the investigation.
118 Detention of vessel for purposes of investigation
(1) An authorised officer may detain a vessel for the purposes of an investigation, but only for so long as is necessary for the purposes of the investigation.(2) An authorised officer may not detain a vessel for more than 48 hours unless authorised to do so by order of a Magistrate. A Magistrate may, on application by an authorised officer, make such an order if satisfied there is reasonable cause for doing so.(3) The authorised officer may give the master or owner (or any other person) any directions required for the purpose of detaining the vessel.
119 Production of marine safety licences
(1) The holder of a boat driving licence is required to carry the licence when doing anything for which the licence is required.(2) An authorised officer may require the holder of a marine safety licence who is doing anything for which the licence is required to produce the holder’s licence.(3) The holder of a marine safety licence (other than a boat driving licence) is not required to produce the licence at the time the requirement is made if the holder does not have the licence in his or her possession at the time. In that case, the holder is required to produce the licence to an authorised officer within 24 hours or within any longer period approved by an authorised officer.(4) An authorised officer may seize any marine safety licence that has been cancelled or otherwise ceased to have effect or that the officer has reason to believe is false.
120 Identification of person suspected of committing offence
An authorised officer may require a person whom the authorised officer has reason to suspect has committed an offence against the marine legislation to state his or her full name and residential address.
121 Identification of owner and master of vessel
(1) An authorised officer may require information about the owner or master of a vessel under this section for the purpose of an investigation.(2) A person must, if an authorised officer requires the person to do so, supply all the information the person has regarding the identity and address of the owner or the master of a vessel.
122 Power to require persons to attend to answer questions or produce documents or other things
(1) An authorised officer may, by notice in writing, require either or both of the following:(a) the attendance of any person at any place to answer questions at an inquiry for the purposes of an investigation,(b) the production of any documents or other things required by the authorised officer for the purposes of the investigation.(2) At any such inquiry, the authorised officer:(a) is not bound by the rules of evidence, and(b) may conduct the inquiry without regard to legal forms, and(c) may inform himself or herself in such manner as the officer thinks fit.(3) At any such inquiry, the authorised officer may administer an oath or require any statement to be verified by statutory declaration.(4) A person is not required under this section to travel more than 16 kilometres from the person’s residence at the time of receiving the notice, unless such reasonable allowances for expenses incidental to attendance to give evidence is tendered to the person on the scale allowed for a witness attending on subpoena to give evidence before the District Court.
123 Limitation on self-incrimination
(1) A person who is required under this Division to answer a question or to produce a thing is not excused from answering the question or producing that thing on the ground that the answer to the question or the production of the thing might tend to incriminate the person or make the person liable to a penalty.(2) The answer to the question or production of the thing, or any information obtained as a direct consequence of the answer or production is not admissible in evidence against the person in any criminal proceedings except proceedings for an offence against section 125.
124 General provisions relating to functions under this Division
(1) In the exercise of a function under this Division, an authorised officer is to do as little damage as possible.(2) A requirement that an authorised officer may make under this Division may specify a reasonable time within which it is to be complied with. If no such time is specified, the requirement is to be complied with as soon as practicable after it is made.
(1) A person must not, without reasonable excuse, prevent or obstruct any person exercising a function under this Division.(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made of the person under this Division.(3) A person must not give any information or make a statement pursuant to any requirement made under this Division that the person knows is false or misleading.Maximum penalty: 50 penalty units.
Division 5 Prohibition and improvement notices relating to public ferry wharves
In this Division:public ferry wharf means a wharf or any associated facilities used for the purposes of public passenger services provided by ferries.
125B Inspections of public ferry wharves
(1) The Minister may cause inspections to be carried out of public ferry wharves.(2) The Minister may appoint a person who may be appointed as an investigator under Division 3 to carry out any such inspection.(3) For the purposes of an inspection under this section, a person carrying out an inspection has all the powers and other functions of an authorised officer under this Part.(4) The regulations may make provision for or with respect to the following matters:(a) the methodology or standards with which inspections must comply,(b) provision of inspection reports to persons,(c) procedures with respect to responses to inspection reports.(5) Nothing in this section limits any functions of the Minister under Division 3.(6) Section 97 applies to a person appointed under this section.
(1) The Minister may give an improvement notice to the owner of a public ferry wharf, or a person responsible for the maintenance of any such wharf, if the Minister is of the opinion that it is necessary to do so to ensure the safety of persons using, or operating, public passenger services provided by ferries.(2) An improvement notice may require the person to undertake remedial safety work with respect to the public ferry wharf.(3) The period within which a person is required by an improvement notice to undertake remedial safety work must be at least 7 days after the notice is given.(4) However, the Minister may specify a period that is less than 7 days after the improvement notice is given if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of the period.(5) An improvement notice must:(a) state that the Minister is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) include information about obtaining a review of the notice under this Division.
125D Failure to comply with improvement notice
A person who, without reasonable excuse, fails to comply with a requirement imposed on the person by an improvement notice is guilty of an offence.Maximum penalty:
(a) in the case of a corporation—500 penalty units, or(b) in the case of an individual—250 penalty units.
(1) If an authorised officer is of the opinion that, at any public ferry wharf, there is occurring or is about to occur any activity that involves or will involve an immediate risk to the health or safety of persons using, or operating, public passenger services provided by ferries, the authorised officer may give to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters that give or will give rise to the risk are remedied.(2) A prohibition notice must:(a) state that the authorised officer is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) specify the activity in respect of which that opinion is held, and(d) include information about obtaining a review of the notice under this Division.(3) A person who is given a prohibition notice who, without reasonable excuse, fails to comply with a requirement imposed by the notice is guilty of an offence.Maximum penalty:
(a) in the case of a corporation—500 penalty units, or(b) in the case of an individual—250 penalty units.
125F Notices may include directions
(1) An improvement notice or a prohibition notice may include directions as to the measures to be taken to comply with the notice.(2) Any such direction may:(a) adopt, by reference, the requirements of any industry or other code of practice or standard, and(b) offer the person to whom it is issued a choice of ways in which to comply with the notice.
125G Review of notices by Minister
(1) A person who is given a notice under this Division may apply in writing to the Minister for a review of the notice.(2) The application for review must be made within 7 days after the notice is given, or, if the regulations prescribe a different period, within the period so prescribed.(3) An application for review may be made only once in respect of any particular notice.(4) The Minister is to review a notice that is the subject of a duly made application for review.(5) The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the Minister until the Minister gives notice to the applicant of the result of the review.(6) The Minister may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant.(7) Regulations may be made with respect to reviews under this section.
125H Application to Administrative Decisions Tribunal for stay of prohibition notice
(1) A person who applies for a review of a prohibition notice under section 125G may apply to the Administrative Decisions Tribunal for a stay of the notice.(2) A stay may be granted for the period considered appropriate by the Tribunal, but not so as to extend past the time when notice of the result of the review is given to the applicant by the Minister.(3) A stay may be granted on such conditions as the Tribunal thinks appropriate and may be revoked or amended by the Tribunal.
125I Appeal to Administrative Decisions Tribunal
A person who is aggrieved by a decision of the Minister under section 125G may apply to the Administrative Decisions Tribunal for a review of the decision.
(1) An improvement notice or a prohibition notice may be withdrawn at any time by the Minister or the authorised officer who gave the notice, if satisfied that the notice was given in error or is incorrect in some respect.(2) The withdrawal has effect when notice of the withdrawal is given to the person to whom the notice was given.(3) The withdrawal or revocation of an improvement notice or a prohibition notice does not prevent the giving of any other improvement notice or prohibition notice.
125K Proceedings for offences not affected by notices
The giving, variation, revocation or withdrawal of an improvement notice or a prohibition notice does not affect any proceedings for an offence against this Act or the regulations or any other Act or law in connection with any matter in respect of which the notice was issued.