Marine Safety Act 1998 No 121
Current version for 1 December 2014 to date (accessed 23 December 2014 at 01:53)
Part 9

Part 9 Legal proceedings

126   Penalty notices

(1)  A law enforcement officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against the marine legislation, being an offence prescribed by the regulations.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice may be served personally or by post.
(4)  If the amount of the penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not an admission of liability for the purposes of, and does not affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(6)  The regulations may:
(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and
(b)  prescribe the amount of penalty for an offence if dealt with under this section, and
(c)  prescribe different amounts of penalty for different offences or classes of offences.
(7)  The amount of penalty prescribed under this section for an offence may not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.
(9)  In this section, law enforcement officer means a police officer or, in relation to a particular offence, a person belonging to a class of persons specified in the regulations in relation to that offence.

127   Offences

(1)  Proceedings for an offence against this Act or the regulations are to be disposed of summarily before:
(a)  the Local Court, or
(b)  the Supreme Court in its summary jurisdiction.
(2)  If proceedings are brought before the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.

128   Time within which proceedings may be commenced

Despite the Criminal Procedure Act 1986 or any other Act, proceedings for an offence under this Act or the regulations may be commenced not later than 2 years after the date alleged to be the date on which the offence was committed.

129   Persons who may bring proceedings

Proceedings for an offence against the marine legislation may be brought by any person, including a police officer or an authorised officer.

130   Offences by corporations

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(2)  A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

131   Proof of lawful or reasonable excuse

If an act or omission is, by the marine legislation, made an offence when done or omitted without lawful or reasonable excuse, proof of the lawful or reasonable excuse lies on the accused.

132   Act presumed to apply to vessels

If the application of a provision of the marine legislation to a vessel is in question in any proceedings under the marine legislation, that provision is taken (in the absence of evidence to the contrary) to apply to the vessel.

133   Proof of certain matters not required

(1)  A certificate signed or purporting to be signed by the Minister, RMS or an officer prescribed by the regulations and stating that:
(a)  a person named in the certificate was or was not at a specified time the holder of a marine safety licence or exemption under the marine legislation of a specified kind, or
(b)  any such licence or exemption held by a specified person was or was not subject to a specified condition, or
(c)  any such licence that had been suspended or cancelled has not been delivered to the Minister or RMS,
is admissible in any legal proceedings and is evidence of the matters stated in the certificate.
(2)  In any legal proceedings under the marine legislation, proof is not required (until evidence is given to the contrary) of the following:
(a)  any order of the Minister or RMS,
(b)  the fact that a vessel is subject to a provision of the marine legislation in question,
(c)  the fact that the defendant is, or at any relevant time was, the master or operator of any vessel in question,
(d)  the fact that the defendant is, or at any relevant time was, the owner or agent of any vessel in question,
(e)  the fact that, at any relevant time, any vessel was not used solely for recreational or sporting purposes or was used for commercial purposes,
(f)  the fact that any vessel was, at any relevant time, of such a tonnage or length that any provision of the marine legislation applied to it,
(g)  the appointment of any person under the marine legislation,
(h)  the particular or general appointment of a member of staff of RMS to take proceedings against a person for an offence against the marine legislation,
(i)  the particular or general appointment of a person to recover any amount payable to the Minister or RMS,
(j)  the fact that the defendant is, or at any relevant time was, the owner or occupier of, or in possession, control or charge of, any land or other thing in question,
(k)  the fact that any land in question is, or at any relevant time was, vested in the Crown, any Minister or any statutory body,
(l)  the times of sunrise and sunset on any day as published in a statement in a newspaper circulating throughout New South Wales.
(3)  In any legal proceedings under the marine legislation, evidence that:
(a)  a message or signal was transmitted, given or made by an authorised officer or a delegate of the Minister in the course of his or her duties, and
(b)  the vessel to which the message or signal was transmitted, given or made was so located as to be able to receive the message or signal,
is evidence that the message or signal was received by the master of the vessel concerned.

134   Service of instruments (except in proceedings for offences)

(1)  Any notice or other instrument issued, made or given for the purposes of the marine legislation may be served:
(a)  by delivering it personally to the person to whom it is addressed, or
(b)  by delivering it to the place of residence or business of the person to whom it is addressed and by leaving it there with some person for him or her, or
(c)  by posting it to the person addressed to the place last shown in the records of the Minister or RMS as his or her place of residence or business, or
(d)  in any manner in which any court attendance notice or other process in any proceedings for an offence under the marine legislation may be served, or
(e)  if it is to be served on a person on board a vessel—by transmitting its contents to the master of the vessel in any manner or by any other manner authorised by this section.
(2)  For the purposes of this section, a person’s place of residence or business includes a vessel on which the person resides or works.
(3)  This section does not apply to the service of any court attendance notice or other process in any proceedings for an offence under the marine legislation or to the service of any notice or other instrument for which provision is specifically made in the marine legislation.

135   Service of court attendance notice and other process in legal proceedings

(1)  Any court attendance notice or other process to be served on the owner or master of a vessel in any proceedings for an offence under the marine legislation may be sufficiently served by serving it on the agent of the vessel in any manner in which it might otherwise have been served on the owner or master.
(2)  A court attendance notice or other process so served on the agent of the vessel is taken to have been served on the owner or master of the vessel.
(3)  In this section, agent of a vessel includes:
(a)  the agent for the berthing or working of the vessel while it is in port, or
(b)  if the vessel has left port—that agent or, if there was another agent for the vessel when it left port, that other agent.

135A   Suspension or cancellation of licences by court in connection with offence

(1)  A court may recommend to the National Regulator or a delegate of the National Regulator that the National Regulator take any of the following actions in relation to a person convicted of an offence against this Act:
(a)  suspend for a specified period or cancel a National licence that the person holds,
(b)  disqualify the person from holding or obtaining a National licence for a specified period.
(2)  A recommendation may be made under this section only if similar action could be taken under this Act to cancel or suspend a marine safety licence of a person convicted of the same offence or disqualify such a person from holding a marine safety licence.
(3)  A court may make a recommendation under this section in addition to imposing any penalty for the offence concerned.
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