Australian Capital Territory National Land (Lakes) Ordinance 2022 (Cth)
Australian Capital Territory National Land (Lakes) Ordinance 2022
I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Ordinance.
Dated 31 March 2022
David Hurley
Governor‑General
By His Excellency’s Command
Nola Marino
Assistant Minister for Regional Development and Territories
Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development
Contents
Part 1—Preliminary 1
Division 1—Preliminary 1
1............ Name............................................................................................................................. 1
2............ Commencement............................................................................................................. 1
3............ Authority....................................................................................................................... 1
Division 2—Simplified outline of this Ordinance 2
4............ Simplified outline of this Ordinance.............................................................................. 2
Division 3—Interpretation 3
5............ Definitions..................................................................................................................... 3
6............ References to entering a place of inspection.................................................................. 9
Division 4—Application of this Ordinance 10
7............ Application of this Ordinance—National Land........................................................... 10
8............ Application of this Ordinance—emergencies.............................................................. 10
Part 2—Management and control of a lake 12
9............ Alterations in flow and water level.............................................................................. 12
10.......... Compensation for damage........................................................................................... 12
Part 3—Use of a lake 13
Division 1—Introduction 13
11.......... Simplified outline of this Part...................................................................................... 13
12.......... Offences in Part do not apply to inspectors................................................................. 13
Division 2—Regulation of use 14
13.......... Rules may prescribe areas to regulate use.................................................................... 14
14.......... General restrictions on boats....................................................................................... 14
15.......... Restrictions on swimming and diving......................................................................... 14
16.......... Buoys, wharves and jetties.......................................................................................... 15
17.......... Restriction on kind of boat that may use wharf or jetty............................................... 15
18.......... Mooring permit........................................................................................................... 16
19.......... Mooring offences........................................................................................................ 16
20.......... Speed limits................................................................................................................. 17
21.......... Restrictions on kinds of boats..................................................................................... 17
22.......... Signs........................................................................................................................... 18
Division 3—Closed areas 19
23.......... Closure of lake area for safety, maintenance etc.......................................................... 19
24.......... Closing parts of lake area for events............................................................................ 19
25.......... Access to leased or occupied land............................................................................... 20
Division 4—Power boats 21
26.......... Restrictions—power boats.......................................................................................... 21
27.......... Authorisation to use power boats................................................................................ 21
28.......... Operating power boat near swimming area................................................................. 22
Division 5—Other prohibitions 23
29.......... Anchoring boats at night............................................................................................. 23
30.......... Use of hovercraft prohibited........................................................................................ 23
31.......... Houseboats prohibited................................................................................................. 23
32.......... Camping or caravanning.............................................................................................. 24
33.......... Waterskiing and other prohibited activities.................................................................. 24
34.......... Commercial activity..................................................................................................... 24
35.......... Agreements to undertake commercial activities in lake area......................................... 25
Division 6—Interference 26
36.......... Interfering with use of waters or land.......................................................................... 26
37.......... Interfering with other boats......................................................................................... 26
38.......... Interfering with dredges or immobile boats................................................................. 26
39.......... Interfering with navigation aids................................................................................... 26
40.......... Interfering with equipment on boats............................................................................ 26
41.......... Interfering with safety equipment................................................................................ 27
Division 7—Admission charges 28
42.......... Power for Delegate for Lakes to charge for admission................................................ 28
43.......... Exclusive right of occupation and use......................................................................... 28
Division 8—Exemptions 29
44.......... Exemption by Minister................................................................................................ 29
45.......... Breaching condition of exemption............................................................................... 29
Part 4—Safety 30
Division 1—Simplified outline of this Part 30
46.......... Simplified outline of this Part...................................................................................... 30
Division 2—Safe operation of boats 31
47.......... Operating unsafe boat.................................................................................................. 31
48.......... Reckless or negligent operation of boat....................................................................... 31
49.......... Exceeding power rating for boat.................................................................................. 31
50.......... Minimum distance requirements for power boats........................................................ 31
51.......... Dangerous operation of boat....................................................................................... 33
52.......... Unsafe towing or pushing of boat or object................................................................ 33
Division 3—Right of way rules 34
Subdivision A—General 34
53.......... Keeping out of the way and keeping course................................................................ 34
54.......... Exception for boat races.............................................................................................. 34
Subdivision B—Specific right of way rules 34
55.......... Sailing boats................................................................................................................ 34
56.......... Power boats................................................................................................................. 35
57.......... Power boats and sailing boats..................................................................................... 35
58.......... Overtaking................................................................................................................... 35
59.......... Navigating channels.................................................................................................... 35
Division 4—Conduct of people 36
60.......... Dangerous conduct...................................................................................................... 36
61.......... Conduct on power boats.............................................................................................. 36
62.......... Passengers on domestic commercial vessels............................................................... 37
Division 5—Lights and shapes 39
63.......... Liability of persons on boat where no master.............................................................. 39
64.......... Visible distance of lights............................................................................................. 39
65.......... Lights for power boats................................................................................................ 39
66.......... Lights for sailing boats and boats being rowed........................................................... 40
67.......... Lights for rowing boats, dragon boats, kayaks and canoes......................................... 42
68.......... Lights for boats at anchor............................................................................................ 42
69.......... Lights on certain boats restricted in their ability to manoeuvre.................................... 43
70.......... Shapes on certain boats restricted in their ability to manoeuvre................................... 43
71.......... Emergency lights......................................................................................................... 44
Division 6—Unnecessary use of lights and signals 45
72.......... Unnecessary use of distress signals............................................................................ 45
73.......... Unnecessary use of warning or guide lights and signals............................................. 45
74.......... Unauthorised use of emergency patrol signals............................................................ 46
Division 7—Lifejackets for recreational boats 47
75.......... Children under 12 years.............................................................................................. 47
76.......... Wearing a lifejacket on certain recreational boats......................................................... 47
77.......... Direction by master to wear lifejacket on boat............................................................. 47
78.......... Failure to wear lifejackets—defence............................................................................ 48
79.......... Owner and operator of boat to ensure lifejackets are available.................................... 48
80.......... Owner and operator of boat to provide information about lifejackets.......................... 49
Division 8—Other safety equipment for recreational boats 50
81.......... Application of this Division........................................................................................ 50
82.......... Owner and operator of boat to ensure safety equipment available............................... 50
83.......... Owner and operator of boat to provide information about safety equipment............... 50
84.......... Required safety equipment for recreational boats........................................................ 51
85.......... Required standards for safety equipment..................................................................... 52
Division 9—Hatches and exterior doors on recreational boats 54
86.......... Application of this Division........................................................................................ 54
87.......... Construction................................................................................................................ 54
88.......... Locking hatches and exterior doors............................................................................. 54
Division 10—Safety directions 55
89.......... Safe use of lake areas or associated works.................................................................. 55
90.......... Passengers on domestic commercial vessels............................................................... 55
Division 11—Obstructions 57
91.......... Lighting and marking obstruction to navigation.......................................................... 57
92.......... Removing and disposing of obstruction to navigation................................................. 57
93.......... Operator of boat must warn of obstruction or danger.................................................. 58
94.......... Obstructing fairways and channels.............................................................................. 58
95.......... Obstructing wharves and jetties, etc............................................................................ 59
96.......... Obstructing boats........................................................................................................ 59
97.......... Obstructing passengers............................................................................................... 59
98.......... Obstructing loading or unloading cargo...................................................................... 59
99.......... Causing obstruction, nuisance or damage with objects................................................ 59
100........ Moving vehicles and boats in lake area....................................................................... 60
Part 5—Drug and alcohol offences 61
101........ Simplified outline of this Part...................................................................................... 61
102........ Prescribed concentration of alcohol in blood or breath................................................ 61
103........ Defence—lower concentration of alcohol from allowable source................................ 62
104........ Prescribed drug in oral fluid or blood.......................................................................... 62
105........ Under the influence of alcohol or drugs...................................................................... 63
106........ Application of Road Transport (Alcohol and Drugs) Act 1977 (ACT)...................... 63
Part 6—Boating accidents 65
107........ Simplified outline of this Part...................................................................................... 65
108........ Obligation to stop........................................................................................................ 65
109........ Obligation to give assistance....................................................................................... 65
110........ Obligation to give information when involved in boating accident.............................. 65
111........ Obligation to report boating accidents to the Minister................................................. 66
112........ Obligation to preserve evidence................................................................................... 66
Part 7—Safety investigations 67
113........ Simplified outline of this Part...................................................................................... 67
114........ Safety investigations.................................................................................................... 67
115........ Appointment of safety investigators............................................................................ 67
116........ People assisting safety investigators............................................................................ 67
117........ Conduct of safety investigations.................................................................................. 68
118........ Safety investigator may require people to give information, produce documents or answer questions 68
119........ Safety investigation reports......................................................................................... 69
120........ Actions by Minister following safety investigations................................................... 69
121........ Public release of safety investigation reports and recommendations............................ 70
122........ Protection from liability............................................................................................... 70
Part 8—Enforcement 71
Division 1—Introduction 71
123........ Simplified outline of this Part...................................................................................... 71
124........ Powers not to be exercised before identity card shown............................................... 71
125........ People assisting inspectors.......................................................................................... 71
Division 2—Entry and inspection 72
126........ Entering places of inspection....................................................................................... 72
127........ Producing identity cards.............................................................................................. 72
128........ Consent to entry.......................................................................................................... 72
129........ Warrants...................................................................................................................... 73
130........ Warrants—applications made other than in person...................................................... 73
131........ General powers on entry............................................................................................. 74
132........ Power to seize evidence............................................................................................... 75
133........ Powers of magistrates................................................................................................. 75
Division 3—Boarding of boats 77
134........ Facilitating boarding of boats...................................................................................... 77
135........ Directing boats after boarding..................................................................................... 77
136........ Requiring information after boarding.......................................................................... 77
Division 4—Gathering information 78
137........ Master may be required to answer questions............................................................... 78
138........ Master may be required to produce records................................................................. 78
139........ Requirement to provide information about owner or master of boat............................ 78
Division 5—Seizing boats 79
140........ Inspector may seize boat.............................................................................................. 79
141........ When Commonwealth to pay compensation relating to seizure................................... 79
142........ Owner to pay costs of seizure..................................................................................... 79
Division 6—Dealing with things seized 81
143........ Receipts for things seized............................................................................................ 81
144........ Access to things seized................................................................................................ 81
145........ Return of things seized................................................................................................ 81
146........ Disposal of things seized............................................................................................. 81
Part 9—Administration 82
147........ Simplified outline of this Part...................................................................................... 82
148........ Declaration of area as lake........................................................................................... 82
149........ Delegate for Lakes....................................................................................................... 82
150........ Inspectors.................................................................................................................... 82
151........ Identity cards for inspectors........................................................................................ 83
Part 10—Miscellaneous 84
152........ Simplified outline of this Part...................................................................................... 84
153........ Acts and omissions of representative of individual..................................................... 84
154........ Privilege against self‑incrimination.............................................................................. 84
155........ Fees for making applications....................................................................................... 85
156........ Compensation for acquisition of property................................................................... 85
157........ Rules........................................................................................................................... 86
Part 11—Application, savings and transitional provisions 87
Division 1—Transitional provisions relating to commencement of this Ordinance 87
158........ Definitions for this Division........................................................................................ 87
159........ Approval of buoys, wharves and jetties...................................................................... 87
160........ Mooring permits.......................................................................................................... 87
161........ Use of power boats..................................................................................................... 87
162........ Commercial activities................................................................................................... 87
Part 1—Preliminary
Division 1—Preliminary
1 Name
This Ordinance is the Australian Capital Territory National Land (Lakes) Ordinance 2022.
2 Commencement
(1) Each provision of this Ordinance specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Ordinance | 1 April 2022. | 1 April 2022 |
Note: This table relates only to the provisions of this Ordinance as originally made. It will not be amended to deal with any later amendments of this Ordinance.
(2) Any information in column 3 of the table is not part of this Ordinance. Information may be inserted in this column, or information in it may be edited, in any published version of this Ordinance.
3 Authority
This Ordinance is made under the Seat of Government (Administration) Act 1910.
Division 2—Simplified outline of this Ordinance
4 Simplified outline of this Ordinance
This Ordinance regulates boating and other activities on a lake and in the surrounding area. Rules may prescribe areas that are suitable or unsuitable for particular activities, and some activities are generally prohibited or require a permit. A lake area may be closed for reasons of safety or for an event.
The Ordinance includes requirements for the safe operation of boats, including drug and alcohol offences, and provision for the reporting and investigation of boating accidents.
Inspectors, who include police officers, are given powers to enforce the Ordinance and to investigate matters relating to its provisions.
Division 3—Interpretation
5 Definitions
In this Ordinance:
accompanied sailing boat means a boat that:
(a) has a sail; and
(b) is engaged in a training session or competition organised by a sports club or school; and
(c) is accompanied by a power‑driven boat capable of being used for rescue purposes;
but does not include a boat when it is being propelled (in whole or part) by mechanical power.
all‑round light means a light on a boat that shows an unbroken light over an arc of visibility of 360 degrees.
appropriate lifejacket means a lifejacket that:
(a) meets the standards or specifications (if any) prescribed by the rules for the purposes of this paragraph; and
(b) does not rely solely on oral inflation for buoyancy; and
(c) is the correct size for the wearer; and
(d) is in good condition; and
(e) if the lifejacket is an inflatable lifejacket—was:
(i) purchased or otherwise acquired new no more than 12 months before the date it is being worn by a person or carried on a boat; or
(ii) serviced no more than 12 months before the date it is being worn by a person or carried on a boat; or
(iii) if the manufacturer’s instructions for the lifejacket allow a period longer than 12 months before the first service is conducted or between services—purchased (or otherwise acquired new) or serviced within that longer period before the date it is being worn by a person or carried on a boat.
associated work includes a wharf or jetty that is:
(a) owned by the Australian Capital Territory or the Commonwealth; and
(b) erected in a lake area.
boat includes a launch, yacht, rowing boat, canoe, raft, pontoon and anything else that can carry people or goods through or on water.
boating accident means any of the following involving a boat in a lake area:
(a) death of, or injury to, a person on the boat;
(b) loss of a person from the boat;
(c) death of, or injury to, a person that is caused by the boat;
(d) loss, or presumed loss, of the boat (including the sinking or abandonment of the boat);
(e) capsizing, grounding or flooding of the boat;
(f) collision of the boat with another boat or with an object;
(g) the boat being disabled and requiring assistance;
(h) a fire on the boat;
(i) damage caused to the boat (including any structural failure);
(j) damage to the environment caused by the boat or by a substance on, or discharged from, the boat;
(k) an incident that causes a risk of the events mentioned in paragraphs (a) to (j) happening.
channel means an area of a lake that, whether or not indicated by navigation marks, provides a passage for boats.
Chief Executive of the National Capital Authority means the Chief Executive of the National Capital Authority appointed under the Australian Capital Territory (Planning and Land Management) Act 1988.
chief police officer means the police officer responsible to the Commissioner of Police of the Australian Federal Police for the day‑to‑day administration and control of police services in the Australian Capital Territory.
commercial activity means any of the following:
(a) selling or offering for sale food, drink or other things;
(b) letting or offering to let on hire bicycles, boats or other things;
(c) carrying or offering to carry passengers or things in or on a boat for fee or reward;
(d) carrying on the business of boat repair;
(e) undertaking any other activities prescribed by the rules for the purposes of this paragraph.
Delegate for Lakes means the Delegate for Lakes appointed under section 149.
domestic commercial vessel has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law.
dragon boat means a boat that is:
(a) designed to be propelled with paddles by a crew of 10 or more people; and
(b) built so as to float if swamped or capsized.
drug means:
(a) a substance specified in Schedule 1 to the Road Transport (Alcohol and Drugs) Act 1977 (ACT) as in force at the commencement of this Ordinance; or
(b) a controlled drug within the meaning of section 301.1 of the Criminal Code; or
(c) any other substance that, if taken by a person (whether on its own or in combination with alcohol), may influence the operation of a boat by the person.
entity includes an unincorporated body and a person (including a person occupying an office or a position).
exercise a function includes perform the function.
fairway means that part of an area of a lake that is usually used by boats for navigating through the area.
foreshores, in relation to a lake, means the area of land from the level of water in the lake to 100 metres beyond the high water level of the lake, but does not include land:
(a) held under lease from the Commonwealth; or
(b) occupied:
(i) with the authority of the Australian Capital Territory or the Commonwealth; or
(ii) under a law in force in the Australian Capital Territory.
function includes power, duty or authority.
general safety equipment for a boat means the following equipment:
(a) a sound signal (such as an airhorn, bell or whistle);
(b) a waterproof torch;
(c) if the boat has an electric start motor, a gas installation, a fuel stove or a battery—at least one fire extinguisher, and other fire extinguishers if potential sources of fire and the size of the boat require it;
(d) if the boat has a covered bilge or a closed under‑floor or under‑deck compartment that is not an airtight void space—as many bilge pumps as are required to ensure that the pumps are capable of draining each compartment;
(e) if the boat is less than 6 metres in length and has only one independent means of propulsion—at least one paddle or a pair of oars with rowlocks;
(f) if the boat is not a sailing boat less than 6 metres in length—an anchor with a chain or line;
(g) if the boat is not a sailing boat with a permanently enclosed self‑draining hull or a boat mentioned in paragraph (d)—a bailer or bucket.
Example: For the purposes of paragraph (e), one or more sails on a boat are one independent means of propulsion.
inspector means a person who is an inspector under section 150.
keep its course: see subsection 53(2).
keep out of the way: see subsection 53(1).
lake means:
(a) Lake Burley Griffin; or
(b) any other area of National Land declared by the Minister to be a lake under section 148.
Note: This Ordinance applies to the lake area of Lake Burley Griffin to the extent that it is National Land (see section 7). The Lakes Act 1976 (ACT) and instruments made under that Act apply in relation to the remaining area of Lake Burley Griffin.
lake area means an area consisting of a lake, the foreshores of the lake and the islands (if any) in the lake.
Lake Burley Griffin means the waters of the Molonglo River between Scrivener Dam and Molonglo Reach (within the meaning of the Lakes Act 1976 (ACT) as in force at the commencement of this Ordinance), but does not include Kingston Harbour (within the meaning of that Act).
marine pilot means a person who has the conduct of, but does not belong to, a boat.
Marine Safety (Domestic Commercial Vessel) National Law means the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
Note: The Marine Safety (Domestic Commercial Vessel) National Law is set out in Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and, when applying as a law of the Commonwealth, may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth (see section 4 of that Act).
master, of a boat, means the person having the command or charge of the boat, but does not include a marine pilot.
masthead light means a light on a boat that shows an unbroken white light over an arc of visibility of 225 degrees, showing from anywhere ahead of the boat to just behind the beam of the boat on both sides.
mooring permit: see subsection 18(2).
National Capital Authority means the body continued in existence by the Australian Capital Territory (Planning and Land Management) Act 1988.
National Land has the same meaning as in the Australian Capital Territory (Planning and Land Management) Act 1988.
night means the period between sunset on one day and sunrise on the next day.
obstruction to navigation means any thing in a lake area, other than a thing that is lawfully constructed in the lake area, that is:
(a) a risk to the safe navigation of boats; or
(b) moored, berthed or placed in contravention of this Ordinance or the Marine Safety (Domestic Commercial Vessel) National Law.
off‑the‑shore boat means a sailing boat that:
(a) is not ballasted; and
(b) does not have a cabin or fixed keel; and
(c) does not have an engine; and
(d) is not a sailboard.
operate, in relation to a boat, means determine or exercise control over, or attempt to determine or exercise control over, the course or direction of the boat or the means of propulsion of the boat, whether or not the boat is under way.
owner, of a boat (including a boat that is mortgaged, chartered, leased or hired), includes a person who:
(a) is registered as an owner of the boat in a certificate of registry, or a certificate or unique identifier issued for the boat, under a law of the Commonwealth, a State or the Northern Territory; or
(b) is a joint owner of the boat; or
(c) whether on the person’s own behalf or on behalf of someone else:
(i) exercises any of the functions of the owner of the boat; or
(ii) publicly represents that the person has those functions or accepts the obligation to exercise those functions; or
(d) is the charterer of the boat.
Note: For the purposes of paragraph (a), a certificate or unique identifier may be issued for a boat under the Marine Safety (Domestic Commercial Vessel) National Law.
personal watercraft means a recreational boat that:
(a) has a fully enclosed hull; and
(b) does not retain water that is taken on if it capsizes; and
(c) is designed to be operated by a person sitting within the boat or lying, standing, sitting astride or kneeling on the boat.
place of inspection means a place, premises, vehicle or boat.
police officer means a member or special member of the Australian Federal Police.
power boat means a boat propelled by mechanical power, and includes a boat under both power and sail.
prescribed drug means any of the following:
(a) methylamphetamine;
(b) delta‑9‑tetrahydrocannabinol;
(c) N,α‑Dimethyl‑3,4‑(Methylenedioxy)phenylethylamine (MDMA).
prescribed mooring area means an area prescribed for the purposes of section 13 to be a mooring area.
recreational boat means a boat other than:
(a) a domestic commercial vessel; or
(b) a regulated Australian vessel (within the meaning of the Navigation Act 2012).
regulated activity permit means a permit issued under Division 2 of Part 4 of the Australian Capital Territory National Land (Unleased) Ordinance 2022.
relevant period, in relation to the operation of a boat by a person, means the period beginning when the person stops operating the boat and ending at the latest time when:
(a) a breath or oral fluid analysis of the person may be carried out under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) as it applies under section 106 of this Ordinance in relation to the person; or
(b) a sample of the person’s blood may be taken under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) as it applies under section 106 of this Ordinance in relation to the person.
Note The Road Transport (Alcohol and Drugs) Act 1977 (ACT) provides for breath and oral fluid analysis and the taking of samples from a person.
required safety equipment, for a kind of recreational boat: see section 84.
required standards, for safety equipment: see section 85.
rules means rules made under section 157.
safety investigation means an investigation under section 114.
safety investigation report means a report under section 119.
safety investigator means a person appointed under section 115.
sailing boat means a boat with a sail, but does not include such a boat when it is being propelled (in whole or part) by mechanical power.
sidelights means lights on a boat that show:
(a) an unbroken green light on the starboard side of the boat over an arc of visibility of 112.5 degrees, from ahead of the boat to just behind the beam of the boat on the starboard side; and
(b) an unbroken red light on the port side of the boat over an arc of visibility of 112.5 degrees, from ahead of the boat to just behind the beam of the boat on the port side.
small boat means a dinghy, row boat or inflatable boat that:
(a) is less than 3 metres in length; and
(b) is built so as to float if swamped or capsized; and
(c) is not a tender or a boat carrying an engine or fuel.
small tender means a tender that:
(a) is less than 3 metres in length; and
(b) only operates within 200 metres of the shore.
sports club means an entity established for a sporting or athletic purpose, and includes each person who is a member of the entity or who is participating in a competition that is run by the entity.
sternlight means a light on a boat that shows an unbroken white light behind the boat over an arc of visibility of 135 degrees.
tender means a boat that:
(a) is less than 7.5 metres in length; and
(b) only transports goods or people; and
(c) only operates between its parent boat and the shore or another boat; and
(d) only operates within 1 nautical mile from its parent boat.
Transport for NSW means the body of that name constituted by the Transport Administration Act 1988 (NSW), as in force at the commencement of this Ordinance.
under way, in relation to a boat, means the boat is not anchored, moored, aground or made fast to the shore or a jetty.
unsafe, in relation to a boat, means the boat is a danger to human life or to the environment because of any of the following:
(a) the condition of the boat or equipment on the boat;
(b) the manner or place in which cargo or equipment on the boat is stowed or secured;
(c) the nature of the cargo on the boat;
(d) the overloading of the boat.
6 References to entering a place of inspection
A reference to entering a place of inspection is, in relation to a boat, a reference to boarding the boat.
Division 4—Application of this Ordinance
7 Application of this Ordinance—National Land
(1) This Ordinance applies in relation to a lake or lake area to the extent that the lake or lake area is on National Land.
Note: The Lakes Act 1976 (ACT) and instruments made under that Act apply in relation to the lakes and lake areas in the Australian Capital Territory to the extent that those lakes and lake areas are not National Land.
(2) This Ordinance does not apply to the management, or regulation, of the taking of water on National Land.
Note: The ACT Executive has responsibility for the management and regulation of the taking of water on National Land (see subsections 6(2) and 29(1) of the Australian Capital Territory (Planning and Land Management) Act 1988).
8 Application of this Ordinance—emergencies
(1) This Ordinance (other than Part 5—Drug and alcohol offences) does not apply to:
(a) the exercise, or purported exercise, by a relevant person of a function under the Emergencies Act 2004 (ACT) for the purpose of:
(i) protecting life or property; or
(ii) controlling, extinguishing or preventing the spread of a fire; or
(b) action by:
(i) an authorised officer (within the meaning of section 14 of the Environment Protection Act 1997 (ACT)); or
(ii) a person acting under the direction of such an authorised officer;
to prevent, minimise or remedy serious or material environmental harm under Division 11.3 (Emergency powers) of Part 11 of the Environment Protection Act 1997 (ACT).
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Note 2: An authorised officer includes the Environment Protection Authority appointed under the Environment Protection Act 1997 (ACT) (see section 14 of that Act).
(2) A person is a relevant person for the purposes of paragraph (1)(a) if the person is:
(a) a member of any of the following services:
(i) the ACT Ambulance Service;
(ii) the ACT Fire and Rescue Service;
(iii) the ACT Rural Fire Service;
(iv) the ACT State Emergency Service; or
(b) any other person under the control of the chief officer (within the meaning of the Emergencies Act 2004 (ACT)) for a service mentioned in paragraph (a); or
(c) an emergency controller (within the meaning of that Act); or
(d) any other person under the control of an emergency controller (within the meaning of that Act); or
(e) a police officer.
(3) A reference in this section to:
(a) the Emergencies Act 2004 (ACT); or
(b) the Environment Protection Act 1997 (ACT);
is a reference to that Act as in force at the commencement of this Ordinance.
Part 2—Management and control of a lake
9 Alterations in flow and water level
(1) For the purposes of the maintenance and preservation of a lake and the maintenance, testing and preservation of associated works, the Minister may authorise:
(a) a raising or lowering, by any means, of the level of water in a lake; or
(b) stopping the flow, or reducing the rate of flow, of water from a lake; or
(c) the flow, or an increase in the rate of flow, of water from a lake.
(2) The Minister must ensure that any action necessary to minimise any detriment, inconvenience and damage that may result from doing something under subsection (1) is taken.
10 Compensation for damage
(1) If any land is injuriously affected by the doing of an act authorised by the Minister under subsection 9(1), the owner of the land:
(a) must be paid compensation by the Commonwealth; and
(b) is not entitled to any other remedy or relief;
in respect of the injurious effect.
(2) The amount of the compensation is to be determined by the Minister.
(3) This section does not exclude or limit any liability of the Commonwealth or a person, apart from this section, in respect of a matter in relation to which compensation is not payable under this section.
(4) In this section:
owner, of land, includes anyone with an interest in the land.
Part 3—Use of a lake
Division 1—Introduction
11 Simplified outline of this Part
The rules may prescribe the areas in which boating activities, such as launching or mooring a boat, and other activities such as swimming may take place, and may impose speed limits and other restrictions for boats (Division 2).
A lake area or part of a lake area may be closed for reasons such as safety or for an event (Division 3).
Power boats are more specifically regulated by Division 4.
Certain activities in a lake area such as the use of hovercraft, camping and waterskiing are generally prohibited by Division 5.
Division 6 prohibits various forms of interference with the use of a lake area by others.
Division 7 enables temporary admission charges to be imposed for access to a lake area or part of a lake area.
Division 8 enables the Minister to exempt a person from provisions in this Part.
12 Offences in Part do not apply to inspectors
An offence in this Part does not apply to an inspector exercising a function of the inspector under this Ordinance.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
Division 2—Regulation of use
13 Rules may prescribe areas to regulate use
The rules may prescribe an area within a lake area to be any of the following:
(a) a launching area;
(b) a beaching area;
(c) an area where embarkation on to, or disembarkation from, a boat is not permitted;
(d) an area where the landing of boats is not permitted;
(e) a swimming area;
(f) an area where swimming or diving is not permitted;
(g) a mooring area.
14 General restrictions on boats
(1) A person commits an offence of strict liability if the person:
(a) puts a boat in a lake or takes a boat from a lake (other than a personal watercraft) at a place that is not in a launching area prescribed for the purposes of section 13; or
(b) beaches, cleans or repairs a boat (other than a personal watercraft) in a lake area at a place that is not in a beaching area prescribed for the purposes of section 13; or
(c) embarks on to, or disembarks from, a boat on a lake in an area prescribed for the purposes of section 13 to be an area where embarkation and disembarkation are not permitted; or
(d) lands a boat on a lake shore, or an island in a lake, in an area prescribed for the purposes of section 13 to be an area where landing of boats is not permitted.
Penalty: 23 penalty units.
(2) Subsection (1) does not apply if the person’s conduct is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
15 Restrictions on swimming and diving
(1) A person commits an offence of strict liability if the person swims in a lake or dives into a lake in an area prescribed for the purposes of section 13 to be an area where swimming or diving is not permitted.
Penalty: 4 penalty units.
(2) Subsection (1) does not apply if the swimming or diving is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) A person commits an offence of strict liability if the person:
(a) swims in Lake Burley Griffin between Kings Avenue Bridge and Commonwealth Avenue Bridge (including directly under either bridge); or
(b) dives into Lake Burley Griffin from Kings Avenue Bridge or Commonwealth Avenue Bridge, or between those bridges;
and the swimming or diving is not in an area prescribed to be a swimming area for the purposes of section 13.
Penalty: 23 penalty units.
(4) Subsection (3) does not apply if the swimming or diving is:
(a) authorised by a regulated activity permit; or
(b) in accordance with an agreement under section 35 in relation to a person undertaking a commercial activity.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
16 Buoys, wharves and jetties
(1) A person may apply to the Minister in writing for approval to:
(a) anchor a buoy in a lake; or
(b) erect a wharf or jetty in a lake area.
Note: A fee may be prescribed for an application under this subsection (see section 155).
(2) The Minister may give approval subject to any conditions the Minister thinks necessary.
(3) A person commits an offence of strict liability if:
(a) the person anchors a buoy in a lake; and
(b) the anchoring has not been approved by the Minister.
Penalty: 4 penalty units.
(4) A person commits an offence of strict liability if:
(a) the person erects a wharf or jetty in a lake area; and
(b) the erection has not been approved by the Minister.
Penalty: 4 penalty units.
17 Restriction on kind of boat that may use wharf or jetty
(1) The rules may prescribe the kinds of boats that may use a wharf or jetty in a lake area.
(2) A person commits an offence of strict liability if:
(a) the person attaches a boat to a wharf or jetty; and
(b) the rules prescribe the kind of boats that may use the wharf or jetty; and
(c) the boat is not of a kind prescribed by the rules.
Penalty: 4 penalty units.
18 Mooring permit
(1) A person may apply to the Minister in writing for a permit to moor a boat in a prescribed mooring area.
Note: A fee may be prescribed for an application under this subsection (see section 155).
(2) The Minister may give the person a written permit (a mooring permit), on such conditions (if any) as the Minister thinks fit.
(3) A mooring permit remains in force for the period, which must not be longer than 12 months, stated in the permit.
(4) A person who holds a mooring permit may apply to the Minister in writing for a condition of the permit to be varied or revoked.
(5) The Minister may, at any time, by notice in writing to a person who holds a mooring permit:
(a) impose further conditions on the permit; or
(b) vary or revoke a condition of the permit (whether or not the Minister has received an application under subsection (4)).
19 Mooring offences
(1) A person commits an offence of strict liability if:
(a) the person moors a boat on a lake; and
(b) the person does not hold a mooring permit.
Penalty: 38 penalty units.
(2) A person who holds a mooring permit commits an offence of strict liability if the person moors a boat on a lake at a place that is not in a prescribed mooring area.
Penalty: 23 penalty units.
(3) Subsection (2) does not apply if the mooring is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) A person who holds a mooring permit commits an offence of strict liability if:
(a) the person moors a boat in a prescribed mooring area; and
(b) the boat is moored to something other than:
(i) a buoy anchored in accordance with an approval given by the Minister under section 16; or
(ii) a wharf or jetty erected in accordance with an approval given by the Minister under section 16.
Penalty: 4 penalty units.
(5) A person who holds a mooring permit commits an offence of strict liability if:
(a) the person moors a boat in a prescribed mooring area; and
(b) the mooring does not comply with the conditions on the person’s mooring permit.
Penalty: 4 penalty units.
20 Speed limits
(1) The rules may prescribe the speed limit for operating a boat on a lake.
(2) The rules may prescribe:
(a) a different speed limit for different parts of a lake; and
(b) a different speed limit for different classes of boat; and
(c) a different speed limit for different circumstances of operation.
(3) A person commits an offence of strict liability if:
(a) the person operates a boat on a place in a lake; and
(b) the boat is operated at a speed greater than the speed limit applying to the operation of the boat in that place.
Penalty: 15 penalty units.
(4) Subsection (3) does not apply if operating the boat at that speed is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
21 Restrictions on kinds of boats
(1) The rules may prescribe:
(a) the kinds of boats that may be operated on all or part of a lake; or
(b) the purposes for which a kind of boat may be operated on all or part of a lake.
(2) A person commits an offence of strict liability if:
(a) the person operates a boat on a lake; and
(b) the rules prescribe the kinds of boats that may be operated on the lake, or on the part of the lake where the person is operating the boat; and
(c) the boat is not of a kind prescribed by the rules.
Penalty: 15 penalty units.
(3) A person commits an offence of strict liability if:
(a) the person operates a boat on a lake; and
(b) the rules prescribe the purposes for which a boat of that kind may be operated on the lake, or on the part of the lake where the person is operating the boat; and
(c) the boat is not operated for a purpose prescribed by the rules.
Penalty: 15 penalty units.
(4) Subsections (2) and (3) do not apply if operating the boat is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
22 Signs
(1) The Minister may, by a sign installed in a lake area, give information or warning to people using the lake area, including information or warning relating to:
(a) areas prescribed for the purposes of section 13; or
(b) speed limits prescribed for the purposes of section 20; or
(c) restrictions prescribed for the purposes of section 17 or 21.
(2) A person (other than the Minister or a person authorised by the Minister) commits an offence of strict liability if the person interferes with, changes or removes a sign installed under subsection (1).
Penalty: 4 penalty units.
Division 3—Closed areas
23 Closure of lake area for safety, maintenance etc.
(1) The Minister may, by notice published on the NCA’s website, temporarily close a lake area or part of a lake area.
(2) The Minister must not close an area under subsection (1) unless:
(a) the Minister is satisfied the condition of the waters of a lake or a part of a lake, as the case may be, is such as to constitute a threat to the health of a person entering those waters; or
(b) the Minister is satisfied the closure is reasonably necessary in connection with the maintenance or preservation of a lake or the maintenance, preservation or testing of an associated work; or
(c) the chief police officer has given the Minister a certificate in writing, stating that the chief police officer is satisfied the closure is reasonably necessary to enable police officers to carry out their duties in a lake or in a lake area; or
(d) the Minister is satisfied it is necessary or desirable to do so by reason of an emergency in a lake or a lake area; or
(e) the Minister is satisfied it is otherwise in the public interest to do so.
(3) The Minister must, at least 5 business days before the area is to be closed, publish a notice about the proposal to close the area on the NCA’s website.
(4) Subsection (3) does not apply in urgent circumstances.
(5) The Minister may cause a boundary of a closed area to be marked by such means as the Minister thinks necessary.
(6) A person commits an offence of strict liability if:
(a) the person enters or remains in an area that is closed under subsection (1); and
(b) an inspector has told the person that:
(i) the area is a closed area; and
(ii) the person must not enter, or remain in, the area.
Penalty: 38 penalty units.
24 Closing parts of lake area for events
(1) The Minister may, by notice published on the NCA’s website, close a part of a lake area for a period for the conduct of an event by an entity.
(2) The Minister must, at least 5 business days before the area is to be closed, publish a notice about the proposal to close the area on the NCA’s website that specifies the area to be closed, the period of closure, the event to be conducted and the entity that is to conduct the event.
(3) A person commits an offence of strict liability if:
(a) the person enters or remains in an area that is closed under subsection (1); and
(b) an inspector has told the person that:
(i) the area is a closed area; and
(ii) the person must not enter, or remain in, the area.
Penalty: 38 penalty units.
25 Access to leased or occupied land
The Minister must not close a part of a lake area under section 23 or 24 that provides access to land:
(a) held under lease from the Commonwealth; or
(b) occupied:
(i) with the authority of the Australian Capital Territory or the Commonwealth; or
(ii) under a law in force in the Australian Capital Territory.
Division 4—Power boats
26 Restrictions—power boats
(1) A person commits an offence of strict liability if:
(a) the person operates a power boat on a lake; and
(b) the person is not authorised to operate the power boat on the lake under section 27.
Penalty: 38 penalty units.
(2) A person commits an offence of strict liability if:
(a) the person is the owner of a power boat; and
(b) the person causes or allows someone else to operate the power boat on a lake; and
(c) the person is not authorised to operate the power boat on the lake under section 27.
Penalty: 38 penalty units.
(3) A person commits an offence if:
(a) the person is a passenger on a power boat on a lake; and
(b) another person operates the power boat; and
(c) the other person is not authorised to operate the power boat on the lake under section 27; and
(d) the person knows the other person is not allowed to operate the power boat.
Penalty: 8 penalty units.
27 Authorisation to use power boats
(1) A person may apply to the Minister in writing for authorisation to operate:
(a) a domestic commercial vessel on a lake; or
(b) any other power boat on a lake for a stated purpose.
Note: A fee may be prescribed for an application under this subsection (see section 155).
(2) A sports club may apply to the Minister in writing for authorisation to operate a power boat on a lake in connection with the conduct of, or the training of persons for, a competition in an aquatic sport.
Note: A fee may be prescribed for an application under this subsection (see section 155).
(3) The Minister may give an authorisation to a person who has applied under subsection (1), or a sports club that has applied under subsection (2), on such conditions (if any) as the Minister thinks fit.
(4) A person or sports club authorised under subsection (3) may apply to the Minister in writing for a condition of the authorisation to be varied or revoked.
(5) The Minister may, at any time, by notice in writing to a person or sports club authorised under subsection (3):
(a) impose further conditions on the authorisation; or
(b) vary or revoke a condition of the authorisation (whether or not the Minister has received an application under subsection (4)).
(6) The Minister may, by notice in writing to a person or sports club authorised under subsection (3), revoke the authorisation if the person or sports club:
(a) fails to comply with a provision of this Ordinance; or
(b) fails to comply with a condition of the authorisation.
(7) A notice under this section may be served on a sports club:
(a) by giving a copy of the notice to a member of the governing body of the club; or
(b) by sending it by prepaid post, addressed to the governing body of the club, at the club’s last known address.
28 Operating power boat near swimming area
(1) A person commits an offence of strict liability if the person operates a power boat:
(a) in a swimming area prescribed for the purposes of section 13; or
(b) within 60 metres of a swimming area prescribed for the purposes of section 13.
Penalty: 23 penalty units.
(2) Subsection (1) does not apply if:
(a) the person is operating the boat to undertake works or maintenance for the Commonwealth or the Australian Capital Territory; or
(b) the operation of the boat is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Division 5—Other prohibitions
29 Anchoring boats at night
(1) A person commits an offence of strict liability if the person anchors a boat on a lake at night.
Penalty: 38 penalty units.
(2) Subsection (1) does not apply if anchoring the boat is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) the boat was anchored to allow fishing by a hand‑held rod and line; and
(b) the defendant or someone else was fishing by a hand‑held rod and line for most of the time the boat was anchored.
Note: A defendant bears a legal burden in relation to the matter in this subsection (see section 13.4 of the Criminal Code).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) the boat was anchored for the purpose of viewing a fireworks display; and
(b) the defendant or someone else was on the boat for that purpose when the boat was anchored.
Note: A defendant bears a legal burden in relation to the matter in this subsection (see section 13.4 of the Criminal Code).
30 Use of hovercraft prohibited
(1) A person commits an offence if the person operates a hovercraft in or over a lake area.
Penalty: 38 penalty units.
(2) Subsection (1) does not apply if operating the hovercraft is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
31 Houseboats prohibited
(1) A person commits an offence of strict liability if the person uses a boat as a houseboat or place of living in a lake area.
Penalty: 23 penalty units.
(2) Subsection (1) does not apply if the use is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
32 Camping or caravanning
(1) A person commits an offence of strict liability if the person camps or keeps a caravan in a lake area at night.
Penalty: 23 penalty units.
(2) Subsection (1) does not apply if the camping or the keeping of the caravan is:
(a) authorised by a regulated activity permit; or
(b) in accordance with an agreement under section 35 in relation to a person undertaking a commercial activity.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
33 Waterskiing and other prohibited activities
(1) A person commits an offence of strict liability if:
(a) the person operates a boat on a lake; and
(b) another person is:
(i) being towed by the boat on or over the lake (including waterskiing or parasailing from the boat); or
(ii) wakeboarding or wakesurfing from the boat (including doing so without a rope).
Penalty: 23 penalty units.
(2) A person commits an offence of strict liability if:
(a) the person is being towed by a boat on or over a lake (including waterskiing or parasailing from the boat); or
(b) the person is wakeboarding or wakesurfing from a boat (including doing so without a rope).
Penalty: 23 penalty units.
(3) Subsections (1) and (2) do not apply if the person’s conduct is authorised by a regulated activity permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
34 Commercial activity
A person commits an offence of strict liability if:
(a) the person undertakes a commercial activity in a lake area; and
(b) the activity is not:
(i) undertaken in accordance with an agreement under section 35; or
(ii) authorised by a regulated activity permit.
Penalty: 23 penalty units.
35 Agreements to undertake commercial activities in lake area
The Minister may enter into a written agreement with a person in relation to the person undertaking a commercial activity in a lake area.
Division 6—Interference
36 Interfering with use of waters or land
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the operation of the boat interferes with another person’s lawful use of the lake area.
Penalty: 23 penalty units.
37 Interfering with other boats
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the operation of the boat causes wash that damages or impacts unreasonably on another boat.
Example: Wash that causes other smaller boats to rock, or damages moored boats.
Penalty: 23 penalty units.
38 Interfering with dredges or immobile boats
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the boat passes a dredge or other boat that:
(i) is engaged in underwater operations and restricted in its ability to manoeuvre; and
(ii) is displaying shapes or lights indicating safe passage on one side in accordance with section 69 or 70; and
(c) the boat does not pass on the side of the dredge or other boat on which safe passage is indicated.
Penalty: 23 penalty units.
39 Interfering with navigation aids
A person commits an offence of strict liability if the person secures a boat to a device used for the safety of navigation that is in or on a lake.
Example: A beacon or a marine mark.
Penalty: 23 penalty units.
40 Interfering with equipment on boats
A person commits an offence if:
(a) the person severs, unties or detaches any rope, cable, chain or other means by which a boat is secured on a lake; and
(b) the person is not authorised to do so by the person who is operating the boat or the owner of the boat.
Penalty: 23 penalty units.
41 Interfering with safety equipment
A person commits an offence of strict liability if:
(a) the person unties or detaches any safety equipment stored in a lake area; and
(b) the person does so for a purpose other than:
(i) securing the safety of any person; or
(ii) preventing the loss of, or damage to, property; or
(iii) maintenance or replacement of the equipment.
Penalty: 23 penalty units.
Division 7—Admission charges
42 Power for Delegate for Lakes to charge for admission
(1) The Minister may authorise the Delegate for Lakes to:
(a) charge for admission to a lake area or a part of a lake area during a period; and
(b) specify the amount of the admission charge.
(2) When authorised under subsection (1), the Delegate for Lakes may exclude a person who does not pay the admission charge from the lake area or part of the lake area.
43 Exclusive right of occupation and use
(1) The Minister may, in writing, grant a person the exclusive right to occupy and use a part of a lake area specified in the instrument for the period and purpose specified in the instrument, and on any conditions specified in the instrument.
(2) The Minister may also grant the person the right to charge an amount for admission to the part of the lake area, not exceeding the amount specified by the Minister.
(3) If the Minister grants a person an exclusive right of occupation and use of a part of a lake area under subsection (1), the person may:
(a) exclude any person from that part of the lake area during the period for which the right is granted; or
(b) if the Minister grants the right to charge for admission:
(i) charge an amount, not exceeding the amount specified by the Minister, for admission to that part of the lake area during the period for which the right is granted; and
(ii) exclude any person who does not pay the admission charge.
Division 8—Exemptions
44 Exemption by Minister
(1) The Minister may, on application in writing and by notifiable instrument, exempt a person or boat from a provision of this Part.
(2) An exemption may be given subject to conditions.
(3) The Minister must not exempt a person or boat unless the Minister is satisfied that the exemption:
(a) is in the public interest; and
(b) will not jeopardise the safety of a boat or a person on board a boat; and
(c) will not compromise the conduct of a safety investigation.
(4) If the Minister is satisfied that an exemption will meet the requirements of subsection (3) only if the exemption is subject to conditions, the Minister must only grant the exemption subject to those conditions.
45 Breaching condition of exemption
A person commits an offence of strict liability if:
(a) the person:
(i) operates a boat on a lake; or
(ii) carries out an action in a lake area; and
(b) the person, or boat, is exempt from a provision of this Part; and
(c) the exemption is subject to a condition; and
(d) the person fails to comply with the condition.
Penalty: 38 penalty units.
Part 4—Safety
Division 1—Simplified outline of this Part
46 Simplified outline of this Part
This Part includes the following kinds of requirements in relation to boating:
(a) to avoid dangerous operation of boats (Division 2);
(b) to follow right of way rules (Division 3);
(c) for persons on boats (including passengers) to avoid dangerous behaviour (Division 4);
(d) for lights and signals to be used on boats at night or when visibility is restricted (Division 5);
(e) prohibitions of the unnecessary use of lights and signals (Division 6);
(f) for the provision and use of lifejackets (Division 7);
(g) for other safety equipment on boats (Division 8);
(h) for safe doors and hatches on boats (Division 9).
Division 10 requires people in a lake area to follow safety directions from an inspector, and passengers on a boat to follow safety directions from the person responsible for the boat.
Division 2—Safe operation of boats
47 Operating unsafe boat
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the boat is unsafe.
Penalty: Imprisonment for 6 months, or 38 penalty units, or both.
48 Reckless or negligent operation of boat
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the operation gives rise to a danger of:
(i) harm (within the meaning of the Criminal Code) or death to someone else; or
(ii) damage to property; and
(c) the person is reckless or negligent about the operation giving rise to the danger.
Penalty: Imprisonment for 6 months, or 38 penalty units, or both.
49 Exceeding power rating for boat
(1) A person commits an offence of strict liability if:
(a) the person operates a boat on a lake; and
(b) there is an appropriate power rating for the boat; and
(c) the boat is powered by a motor that exceeds the appropriate power rating.
(2) The appropriate power rating for a boat is:
(a) the power rating stated for the boat by the manufacturer; or
(b) if no power rating is stated by the manufacturer or the power rating is not apparent:
(i) for a boat with an outboard motor—the maximum power capacity calculated in accordance with Australian Standard AS 1799.1‑2021, Small craft, Part 1:General requirements for power boats, as in force at the commencement of this Ordinance; or
(ii) for any other kind of boat—the power rating (if any) approved by Transport for NSW for boats of that kind.
50 Minimum distance requirements for power boats
(1) A person commits an offence if:
(a) the person operates a power boat on a lake at a speed of 10 knots or more; and
(b) the power boat is less than 60 metres from:
(i) a person on or in the lake; or
(ii) another boat (other than a power boat or a boat that is moored or anchored).
Penalty: 23 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) it was not possible for the power boat to be 60 metres or more from the person or other boat; and
(b) the defendant operated the power boat at a safe distance from the person or other boat.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4 of the Criminal Code).
Example: For the purposes of paragraph (a), the land in all navigable directions was less than 60 metres from the person or other boat.
(3) A person commits an offence if:
(a) the person operates a power boat on a lake at a speed of 10 knots or more; and
(b) the power boat is less than 30 metres from:
(i) another power boat; or
(ii) a boat that is moored or anchored; or
(iii) any land, structure or other thing.
Example: For the purposes of subparagraph (b)(iii), a diving platform, fountain or pontoon.
Penalty: 15 penalty units.
(4) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that:
(a) it was not possible for the power boat to be 30 metres or more from the other boat, land, structure or other thing; and
(b) the defendant operated the power boat at a safe distance from the other boat, land, structure or other thing.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4 of the Criminal Code).
Example: For the purposes of paragraph (a), the land in all navigable directions was less than 30 metres from the other boat.
(5) In this section:
safe distance means:
(a) for the distance of a power boat from a person—a distance at which, taking into account all relevant safety factors including the weather, visibility and speed, the power boat could not cause danger or injury to the person; or
(b) for the distance of a power boat from another boat, land, structure or other thing—a distance at which, taking into account all relevant safety factors including the weather, visibility and speed, the power boat could not cause damage to the boat, land, structure or other thing.
51 Dangerous operation of boat
A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the operation of the boat is:
(i) at a speed that is dangerous to the public; or
(ii) dangerous to the public in any other way.
Penalty: 23 penalty units.
52 Unsafe towing or pushing of boat or object
(1) A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the boat is towing or pushing:
(i) another boat; or
(ii) an object; and
(c) the other boat or object is not secured to the boat.
Penalty: 23 penalty units.
(2) A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the boat is towing or pushing:
(i) another boat; or
(ii) an object; and
(c) the visibility from the boat is obscured by the other boat or object.
Penalty: 23 penalty units.
(3) A person commits an offence if:
(a) the person operates a boat on a lake; and
(b) the boat is towing or pushing:
(i) another boat (other than a tender); or
(ii) an object; and
(c) there is no other person who is:
(i) in a position (in the boat or otherwise) to observe the other boat or object; and
(ii) giving safety instructions to the person operating the boat.
Penalty: 23 penalty units.
(4) Subsections (1) to (3) do not apply if the towing or pushing is occurring in a rescue.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Division 3—Right of way rules
Subdivision A—General
53 Keeping out of the way and keeping course
(1) If a boat is required to keep out of the way of another boat, then:
(a) as far as is practicable, the boat must not cross ahead of the other boat; and
(b) if the boat is a power boat, it must slow down, stop or reverse if necessary to avoid colliding with the other boat.
(2) If a boat is required to keep its course, then the boat must keep its course and speed unless this could cause the boat to collide with another boat.
Note 1: An inspector may issue a direction to a person to follow the rules in this Division. Failing to comply with a direction is an offence (see section 89).
Note 2: A breach of a section in this Division may be dangerous to the public and could constitute an offence under section 51.
54 Exception for boat races
This Division does not apply to a boat taking part in a boat race, in relation to another boat taking part in the race, to the extent that this Division conflicts with a rule approved for the race by the entity controlling the race.
Subdivision B—Specific right of way rules
55 Sailing boats
(1) This section applies if a sailing boat is approaching another sailing boat on a lake.
(2) If each boat has the wind on a different side:
(a) the boat that has the wind on the port side must keep out of the way of the other boat; and
(b) the other boat must keep its course.
(3) If each boat has the wind on the same side:
(a) the boat that is to windward must keep out of the way of the other boat; and
(b) the boat that is to leeward must keep its course.
(4) If the operator of a boat (the first boat) that has the wind on the port side sees a boat to windward but cannot determine with certainty whether the other boat has the wind on the port or starboard side, the first boat must keep out of the way of the other boat.
(5) For the purposes of this section, the windward side of a boat is taken to be the side opposite the side on which the mainsail is carried (or, for a square‑rigged vessel, opposite the side on which the largest fore‑and‑aft sail is carried).
56 Power boats
(1) If a power boat is approaching another power boat on a lake, each boat must alter course to the starboard side so that each boat passes on the port side of the other boat.
(2) If 2 power boats are crossing:
(a) the boat with the other boat on its own starboard side must keep out of the way of the other boat; and
(b) the other boat must keep its course.
57 Power boats and sailing boats
If a power boat and a sailing boat are approaching each other on a lake:
(a) the power boat must keep out of the way of the sailing boat; and
(b) the sailing boat must keep its course.
58 Overtaking
(1) A boat that is overtaking another boat must keep out of the way of the other boat, and the other boat must keep its course.
(2) A boat is overtaking another boat if it is moving toward the other boat from a direction abaft the other boat’s beam of more than 22.5 degrees.
59 Navigating channels
(1) This section applies if a channel or fairway is shown on a lake by bearings, buoys or other means (the markings).
(2) A boat must not exit the channel or fairway other than as shown by the markings.
Division 4—Conduct of people
60 Dangerous conduct
A person commits an offence if:
(a) the person is on a boat on a lake; and
(b) the person does something that is dangerous to the public.
Penalty: 23 penalty units.
61 Conduct on power boats
(1) A person commits an offence of strict liability if:
(a) the person operates a power boat (other than a personal watercraft) on a lake; and
(b) the power boat is being propelled by its engine; and
(c) another person on the power boat extends a part of that person’s body outside the perimeter of the boat.
Penalty: 15 penalty units.
(2) A person commits an offence of strict liability if:
(a) the person is on a power boat (other than a personal watercraft) on a lake; and
(b) the power boat is being propelled by its engine; and
(c) the person extends a part of the person’s body outside the perimeter of the boat.
Penalty: 15 penalty units.
(3) A person commits an offence if:
(a) the person operates a power boat (other than a personal watercraft) on a lake; and
(b) the power boat is being propelled by its engine; and
(c) another person is on the bow of the power boat in a position that puts that person at an increased risk of falling overboard.
Penalty: 15 penalty units.
(4) A person commits an offence if:
(a) the person is on the bow of a power boat (other than a personal watercraft) on a lake in a position that puts the person at an increased risk of falling overboard; and
(b) the power boat is being propelled by its engine.
Penalty: 15 penalty units.
(5) A person commits an offence of strict liability if:
(a) the person operates a power boat (other than a personal watercraft) on a lake; and
(b) the power boat is being propelled by its engine; and
(b) the way in which the person must comply with the notice; and
(c) that it is an offence under this Ordinance to fail to comply with the notice.
(4) A notice mentioned in paragraph (2)(c) must state:
(a) the time and place at which the person must appear; and
(b) that it is an offence under this Ordinance to fail to comply with the notice.
(5) The safety investigator or inspector may require a person who has been given a notice mentioned in paragraph (2)(c):
(a) to answer any question relevant to the safety investigation; and
(b) to give any answer:
(i) on oath or affirmation; and
(ii) orally or in writing.
(6) The safety investigator or inspector may administer an oath or affirmation for the purposes of subsection (5).
(7) If the place stated in a notice mentioned in paragraph (2)(c) is more than 16 kilometres from the place of residence of the person given the notice, the person is entitled to be paid a reasonable allowance for expenses incurred by the person for transport, meals and accommodation in relation to appearing before the safety investigator or inspector.
(8) A person commits an offence of strict liability if:
(a) the person is given a notice under subsection (2); and
(b) the person fails to comply with the notice.
Penalty: 38 penalty units.
119 Safety investigation reports
(1) A safety investigator must prepare a safety investigation report:
(a) after completing a safety investigation into a boating accident or other matter; or
(b) if requested to do so by the Minister under subsection 117(4).
(2) The safety investigation report must include:
(a) findings of fact for the boating accident or other matter, and if the facts cannot be established with certainty, the safety investigator’s opinion as to the most probable facts; and
(b) for a boating accident—the cause or most probable cause of the boating accident; and
(c) recommendations that the safety investigator considers should be implemented to prevent a similar boating accident or other matter from happening again.
(3) The safety investigator must not include an adverse comment in relation to a person in a safety investigation report unless the safety investigator has given the person a reasonable opportunity to respond to the proposed comment.
(4) The safety investigator must submit a safety investigation report to the Minister.
(5) A safety investigator may, at any time during a safety investigation, prepare an interim safety investigation report and submit it to the Minister.
120 Actions by Minister following safety investigations
(1) After receiving a safety investigation report into a boating accident or other matter, the Minister may do one or more of the following (but is not required to take any action):
(a) take action to improve safety procedures for activities in a lake area;
(b) recommend that criminal or other legal proceedings be taken against a person.
(2) 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 safety investigator for further investigation and a further safety investigation report.
121 Public release of safety investigation reports and recommendations
(1) A safety investigator may, at any time during the course of a safety investigation, make recommendations to the Minister.
(2) The Minister may cause the recommendations to be made public if the Minister considers that it is in the interests of safety to do so.
(3) The Minister may publicly release all or part of any safety investigation report submitted to the Minister.
Note: Subsections (2) and (3) constitute authorisations for the purposes of the Privacy Act 1988 and other laws.
(4) The Minister must not publicly release all or part of a safety investigation report if the release might prejudice the rights of any person in any criminal proceedings started in relation to the matter.
122 Protection from liability
(1) This section applies if a person, honestly and without recklessness, gives information to the Minister, a safety investigator or an inspector in relation to a safety investigation.
(2) Civil proceedings may not be brought against any of the following in relation to anything in the information mentioned in subsection (1) that is alleged to be defamatory or a breach of confidence:
(a) the Commonwealth;
(b) the Minister;
(c) the safety investigator;
(d) the inspector;
(e) the person who supplied the information.
Part 8—Enforcement
Division 1—Introduction
123 Simplified outline of this Part
This Part provides for inspectors to enter premises or board a boat (either with consent or a warrant), gather information, and seize a boat that is believed to have been involved in an offence.
124 Powers not to be exercised before identity card shown
An inspector who is not a police officer may exercise a power under Division 4 of this Part in relation to a person only if the inspector first shows the person the inspector’s identity card.
125 People assisting inspectors
A person may assist an inspector under this Part if:
(a) the assistance is necessary and reasonable; and
(b) the person follow any direction given to the person by the inspector.
Division 2—Entry and inspection
126 Entering places of inspection
(1) An inspector may enter a place of inspection:
(a) at any time with the consent of the occupier; or
(b) in accordance with a warrant; or
(c) to protect life or property, if the inspector reasonably believes the circumstances are so serious and urgent that immediate entry without authority of a warrant is necessary.
Note: To enter a place of inspection includes boarding a boat (see the definition of place of inspection in section 5 and section 6).
(2) An inspector may board a boat in a lake area if the inspector reasonably believes that an offence against this Ordinance is being or has been committed.
127 Producing identity cards
An inspector who is not a police officer must not remain at a place of inspection entered under section 126 if, on request by the occupier, the inspector does not produce the inspector’s identity card.
128 Consent to entry
(1) An inspector may enter a place of inspection without the occupier’s consent to ask the occupier for consent to enter the place under section 126.
(2) When seeking the consent of an occupier to enter a place of inspection under section 126, an inspector must:
(a) if the inspector is not a police officer—produce the inspector’s identity card; and
(b) tell the occupier:
(i) the purpose of the entry; and
(ii) that anything found and seized may be used in evidence in court; and
(iii) that consent may be refused.
(3) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgement that:
(a) the occupier was told:
(i) the purpose of the entry; and
(ii) that anything found and seized under section 132 may be used in evidence in court; and
(iii) that consent may be refused; and
(b) the occupier consented to the entry.
(4) The acknowledgement of consent must record the date and time when consent was given.
(5) If the occupier signs an acknowledgement of consent, the inspector must as soon as practicable give a copy to the occupier.
(6) A court must presume that an occupier of a place of inspection did not consent to an entry to the place by an inspector under section 126 if:
(a) the question whether the occupier consented to the entry arises in proceedings in the court; and
(b) an acknowledgement under this section is not produced in evidence for the entry; and
(c) it is not proved that the occupier consented to the entry.
129 Warrants
(1) An inspector may apply to a magistrate for a warrant to enter a place of inspection.
(2) The inspector must give the magistrate information on oath or affirmation stating the grounds on which the warrant is sought.
(3) The magistrate may refuse to consider the application until the inspector gives the magistrate such further information (if any) the magistrate requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting:
(a) there is a particular thing (relevant evidence) or activity that may provide evidence of an offence against this Ordinance; and
(b) either:
(i) the relevant evidence is, or may be within the next 14 days, at the place of inspection; or
(ii) the activity is occurring, or may occur within the next 14 days, at the place of inspection.
(5) The warrant must state:
(a) that an inspector may, with necessary assistance and force, enter the place of inspection and exercise the inspector’s powers under this Division; and
(b) the offence for which the warrant is sought; and
(c) the relevant evidence that may be seized under the warrant; and
(d) the hours when the place of inspection may be entered; and
(e) the date, within 14 days after the warrant’s issue that the warrant ends.
130 Warrants—applications made other than in person
(1) An inspector may apply for a warrant by telephone, fax, email, radio or other form of communication if the inspector considers it necessary because of urgency or other special circumstances.
(2) Before applying for the warrant, the inspector must prepare an information stating the grounds on which the warrant is sought.
(3) The inspector may apply for the warrant before the information is sworn or affirmed.
(4) After issuing the warrant, the magistrate must immediately provide a written copy to the inspector if it is reasonably practicable to do so.
(5) If it is not reasonably practical for the magistrate to provide a written copy to the inspector:
(a) the magistrate must tell the inspector:
(i) the terms of the warrant; and
(ii) the date and time the warrant was issued; and
(b) the inspector must complete a form of warrant (the warrant form) and write on it:
(i) the name of the magistrate; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the terms of the warrant.
(6) The written copy of the warrant, or the warrant form properly completed by the inspector, authorises the entry and the exercise of the inspector’s other powers stated in the warrant issued by the magistrate.
(7) The inspector must send the magistrate at the first reasonable opportunity:
(a) the information referred to in subsection (2), which must have been sworn or affirmed; and
(b) if the inspector completed a warrant form—the warrant form.
(8) On receiving the documents, the magistrate must attach them to the warrant.
(9) A court must find that a power exercised by an inspector was not authorised by a warrant under this section if:
(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a warrant under this section.
131 General powers on entry
(1) An inspector who enters a place of inspection under section 126 may, for the purposes of this Ordinance:
(a) inspect, measure, photograph or film the place of inspection or anything at the place of inspection; or
(b) copy a document at the place of inspection; or
(c) test or take samples of, or from, anything at the place of inspection; or
(d) take into the place of inspection any people, equipment or material the inspector reasonably needs for exercising a power under this Part; or
(e) require the occupier or another person at the place of inspection to give the inspector reasonable help to exercise a power under this Part.
(2) A person commits an offence if:
(a) an inspector requires the person to give the inspector reasonable help under paragraph (1)(e); and
(b) the person fails to take reasonable steps to comply with the requirement.
Penalty: 38 penalty units.
132 Power to seize evidence
(1) An inspector who enters a place of inspection in accordance with a warrant issued under this Division may seize the evidence for which the warrant was issued.
(2) An inspector who enters a place of inspection under section 126 with the occupier’s consent may seize a thing at the place of inspection if:
(a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Ordinance; and
(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.
(3) An inspector who enters a place of inspection under section 126 may seize anything at the place of inspection if the inspector is satisfied on reasonable grounds that:
(a) the thing is connected with an offence against this Ordinance; and
(b) seizure of the thing is necessary to prevent the thing being:
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) An inspector who enters a place of inspection under section 126 may seize anything at the place of inspection if the inspector is satisfied on reasonable grounds that the thing poses a risk to:
(a) the health or safety of a person; or
(b) public or private property; or
(c) the environment.
(5) The powers of an inspector under subsections (3) and (4) are additional to the powers of the inspector under subsection (1) or (2) or under any other law.
(6) If an inspector seizes a thing at a place of inspection, an inspector may:
(a) move the thing from the place of inspection to another place; or
(b) leave the thing at the place of inspection but restrict access to it.
Note: Division 6 of this Part (Dealing with things seized) applies to a thing seized under this section.
(7) A person commits an offence if:
(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under paragraph (6)(b); and
(b) the person does not have an inspector’s approval to interfere with the thing.
Penalty: 38 penalty units.
133 Powers of magistrates
Powers conferred personally
(1) A power conferred on a magistrate by this Division is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or as a member of a court.
Powers need not be accepted
(2) The magistrate need not accept the power conferred.
Protection and immunity
(3) A magistrate exercising a power conferred by this Division has the same protection and immunity as if the magistrate were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
Division 3—Boarding of boats
134 Facilitating boarding of boats
(1) An inspector may request a person to take reasonable steps to allow the inspector to board a boat under section 126.
(2) The inspector may make the request to the master of the boat or someone else.
(3) A person commits an offence of strict liability if:
(a) an inspector makes a request to the person under subsection (1); and
(b) the person fails to comply with the request.
Penalty: 38 penalty units.
135 Directing boats after boarding
(1) An inspector who boards a boat under section 126 may direct the master of the boat to do any of the following:
(a) stop or manoeuvre the boat;
(b) adopt a stated course or speed;
(c) maintain a stated course or speed;
(d) take the boat to a stated place.
(2) A person commits an offence of strict liability if:
(a) an inspector directs the person to take an action under subsection (1); and
(b) the person fails to take reasonable steps to take the action.
Penalty: 38 penalty units.
136 Requiring information after boarding
(1) An inspector who boards a boat under section 126 may require a person on the boat to provide any of the following information if the information is to assist the inspector to carry out the inspector’s functions under this Ordinance:
(a) the person’s name;
(b) the person’s residential address;
(c) the person’s date of birth;
(d) evidence of the person’s identity.
(2) A person commits an offence of strict liability if:
(a) an inspector requires the person to provide information under subsection (1); and
(b) the person fails to take reasonable steps to provide the information.
Penalty: 38 penalty units.
Division 4—Gathering information
137 Master may be required to answer questions
(1) An inspector may require the master of a boat to answer questions about the nature or operation of the boat.
(2) A person commits an offence of strict liability if:
(a) an inspector requires the person to answer a question under subsection (1); and
(b) the person fails to answer the question.
Penalty: 38 penalty units.
138 Master may be required to produce records
(1) An inspector may require the master of a boat to produce a document in the master’s possession about the operations of the boat.
(2) A person commits an offence of strict liability if:
(a) an inspector requires the person to produce a document under subsection (1); and
(b) the person fails to produce the document.
Penalty: 38 penalty units.
139 Requirement to provide information about owner or master of boat
(1) An inspector may require a person to provide information about the identity and address of the owner or master of a boat.
(2) The inspector may require the information to be provided by the person orally or by the production of documents or records in the person’s possession.
(3) A person commits an offence if:
(a) an inspector requires the person to provide information under subsection (1); and
(b) the person has the information; and
(c) the person fails to provide the information.
Penalty: 38 penalty units.
Division 5—Seizing boats
140 Inspector may seize boat
(1) An inspector may seize a boat in a lake area and bring the boat to a holding area if the inspector reasonably believes that the boat is or has been involved in an offence against this Ordinance.
(2) If an inspector seizes a boat under subsection (1), the inspector must give written notice, within 14 days, to:
(a) the owner of the boat; or
(b) if the owner is not able to located—the person who had possession or control of the boat immediately before it was seized.
(3) If it is not practicable for the inspector to give the notice to the person, the inspector may give the notice by fixing the notice to a prominent part of the boat.
(4) The notice must:
(a) identify the boat; and
(b) state that the boat has been seized; and
(c) state the reason the boat has been seized; and
(d) state the contact details of an inspector who can provide further information; and
(e) include information about the return of the boat.
(5) A person commits an offence if:
(a) a boat is seized under subsection (1); and
(b) the person operates the boat, or causes or allows the boat to be operated; and
(c) an inspector has not consented to the operation of the boat.
Penalty: 38 penalty units.
141 When Commonwealth to pay compensation relating to seizure
(1) If there was no reasonable or probable cause for the seizure of a boat under section 140, the Commonwealth is liable to pay the owner of the boat a reasonable amount of compensation for any loss or damage incurred by the owner as a result of the seizure.
(2) The owner of a boat seized under section 140 may institute proceedings in a court of competent jurisdiction for the recovery of compensation payable under subsection (1).
142 Owner to pay costs of seizure
(1) This section applies if:
(a) a boat was seized under section 140; and
(b) the Commonwealth incurs costs in relation to the seizure and holding of the boat; and
(c) the seizure was reasonable in the circumstances.
(2) The owner of the boat is liable to pay to the Commonwealth:
(a) the costs of, and incidental to, the seizure and holding of the boat; and
(b) compensation for any loss or damage incurred by the Commonwealth as a result of the seizure and holding of the boat.
(3) If the owner and the Commonwealth cannot agree on the amount payable under subsection (2), the Commonwealth may recover the costs or compensation by action in a court of competent jurisdiction as a debt due to the Commonwealth.
Division 6—Dealing with things seized
143 Receipts for things seized
(1) As soon as practicable after an inspector seizes a thing under section 132, the inspector must give a receipt for it to the person from whom it was seized.
Note: For notice of seizure of a boat, see section 140.
(2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt at the place of seizure in a reasonably secure way and in a conspicuous position.
144 Access to things seized
A person who would, apart from the seizure, be entitled to a thing seized under section 132 or 140 may:
(a) inspect the thing; and
(b) if the thing is a document—take extracts from, or make copies of, the document.
145 Return of things seized
(1) A thing seized under section 132 or 140 must be returned to its owner, or reasonable compensation must be paid to the owner by the Commonwealth for the loss of the thing, if:
(a) a prosecution for an offence relating to the thing is not instituted within 90 days of the seizure; or
(b) the court does not find the offence proved in a prosecution for an offence relating to the thing.
(2) A thing seized under section 132 or 140 is forfeited to the Commonwealth if a court:
(a) finds an offence relating to the thing to be proved; and
(b) orders the forfeiture.
(3) If paragraph (2)(a) applies but a court does not order forfeiture of the thing seized, the Commonwealth must return the thing to its owner or pay reasonable compensation to the owner in relation to the loss of the thing.
146 Disposal of things seized
(1) An inspector may dispose of a thing seized under section 132 or 140 if:
(a) an inspector has taken reasonable steps under section 145 to return the thing to the person from whom it was seized; and
(b) the inspector has been unable to locate the person or the person has refused to take possession of the thing.
(2) The inspector may dispose of the thing in any way that the inspector considers appropriate.
Part 9—Administration
147 Simplified outline of this Part
This Part provides for declaration of additional lakes on National Land (in addition to Lake Burley Griffin), the appointment of the Delegate of Lakes and of inspectors in addition to police officers, and the supply of identity cards to inspectors.
148 Declaration of area as lake
The Minister may, by notifiable instrument, declare an area of National Land to be a lake for the purposes of this Ordinance.
149 Delegate for Lakes
(1) The Minister must, in writing, appoint one of the following as the Delegate for Lakes:
(a) the Chief Executive of the National Capital Authority;
(b) a member of the staff of the National Capital Authority.
Note: For rules in relation to appointing a person to act in an office, see subsection 33(4) of the Acts Interpretation Act 1901.
(2) The Minister may make the appointment by:
(a) naming the person appointed; or
(b) nominating the person holding or occupying a specified position or office at a particular time or from time to time.
150 Inspectors
(1) The Minister may, in writing, appoint any of the following as an inspector for the purposes of this Ordinance:
(a) the Chief Executive of the National Capital Authority;
(b) a member of the staff of the National Capital Authority.
Note: For rules in relation to appointing a person to act in an office, see subsection 33(4) of the Acts Interpretation Act 1901.
(2) The Minister may make the appointment by:
(a) naming the person appointed; or
(b) nominating the person holding or occupying a specified position or office at a particular time or from time to time.
(3) The following persons are also inspectors for the purposes of this Ordinance:
(a) the Delegate for Lakes;
(b) a police officer.
151 Identity cards for inspectors
(1) The Minister must issue an identity card to an inspector (other than a police officer).
Form of identity card
(2) The identity card must:
(a) state the person’s full name; and
(b) state that the person is an inspector for the purposes of this Ordinance; and
(c) contain a photograph of the person that is no more than 5 years old; and
(d) state the date the card is issued and the date the card expires; and
(e) comply with any other requirements prescribed by the rules.
Offence
(3) A person commits an offence of strict liability if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not return the identity card to the Minister within 7 days after ceasing to be an inspector.
Penalty: 1 penalty unit.
Exception—card lost, stolen or destroyed
(4) Subsection (3) does not apply to a person if the person’s identity card was:
(a) lost or stolen; or
(b) destroyed by another person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Part 10—Miscellaneous
152 Simplified outline of this Part
This Part includes provisions relating to liability for offences, the power for the Minister to set fees, compensation for acquisition of property, and the ability of the Minister to make rules under this Ordinance.
153 Acts and omissions of representative of individual
(1) In this section:
representative, of an individual, means an employee or agent of the individual.
Note: For corporate criminal responsibility, see Part 2.5 of the Criminal Code.
state of mind, of an individual, includes:
(a) the individual’s knowledge, intention, opinion, belief or purpose; and
(b) the individual’s reasons for the intention, opinion, belief or purpose.
(2) This section applies to a prosecution for an offence against this Ordinance.
(3) If it is relevant to prove an individual’s state of mind about an act or omission, it is enough to show:
(a) the act was done or the omission was made by a representative of the individual within the scope of the individual’s actual or apparent authority; and
(b) the representative had the state of mind.
(4) An act done or omitted to be done on behalf of an individual by a representative of the individual, within the scope of the representative’s actual or apparent authority, is also taken to have been done or omitted to be done by the individual.
(5) However, subsection (4) does not apply if the individual establishes that reasonable precautions were taken and appropriate diligence was exercised to avoid the act or omission.
(6) An individual who is convicted of an offence cannot be punished by imprisonment for the offence if the person would not have been convicted of the offence without subsection (3) or (4).
154 Privilege against self‑incrimination
(1) This section applies if an individual is required to answer a question, give information or produce a document or other thing under any of the following provisions:
(a) section 80 (Owner and operator of boat to provide information about lifejackets);
(b) section 83 (Owner and operator of boat information about safety equipment);
(c) section 110 ( Obligation to give information when involved in boating accident);
(d) section 111 (Obligation to report boating accidents to Minister);
(e) section 118 (Safety investigator may require people to give information, produce documents or answer questions);
(f) section 136 (Requiring information after boarding);
(g) section 137 (Master may be required to answer questions);
(h) section 138 (Master may be required to produce records);
(i) section 139 (Requirement to provide information about owner or master of boat).
(2) The individual is not excused from answering the question, giving the information or producing the document or other thing on the ground that doing so might tend to incriminate the individual in relation to an offence.
Note: A body corporate is not entitled to claim the privilege against self‑incrimination.
(3) However:
(a) the answer given, information given or document or other thing produced; and
(b) the answering of the question, giving of the information or production of the document or other thing; and
(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question, giving of the information or production of the document or other thing;
are not admissible in evidence against the individual in criminal proceedings other than proceedings for an offence against a section mentioned in subsection (1) or an offence against section 137.1 or 137.2 of the Criminal Code that relates to a section mentioned in subsection (1).
155 Fees for making applications
(1) The rules may prescribe a fee for making an application to the Minister under a provision of this Ordinance.
(2) A fee must not be such as to amount to taxation.
(3) The rules may:
(a) prescribe different fees for different kinds of applications; or
(b) make provision about exempting a person from payment of the fee; or
(c) make provision about waiving, postponing or refunding the fee (completely or partly).
156 Compensation for acquisition of property
(1) If the operation of this Ordinance would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
157 Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Ordinance to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) directly amend the text of this Ordinance.
Part 11—Application, savings and transitional provisions
Division 1—Transitional provisions relating to commencement of this Ordinance
158 Definitions for this Division
In this Division:
old Ordinance means the Lakes Ordinance 1976, as it was in effect, immediately before 1 April 2022, under the National Land Ordinance 1989 (subject to the modifications specified in the Schedule to the National Land Ordinance 1989).
159 Approval of buoys, wharves and jetties
An approval (the old approval) given under subsection 19(1) of the old Ordinance for anchoring a buoy or erecting a wharf or jetty that was in force immediately before 1 April 2022 continues in force on and after that date:
(a) as if it were an approval given under subsection 16(2) of this Ordinance; and
(b) subject to the same conditions (if any) to which the old approval was subject.
160 Mooring permits
A permit issued under section 25 of the old Ordinance for mooring a boat that was in force immediately before 1 April 2022 continues in force on and after that date, for the period specified in the permit, as if it were a mooring permit given under subsection 18(2) of this Ordinance.
161 Use of power boats
An authority (the old authority) given under subsection 26(1) of the old Ordinance for the use of a power boat that was in force immediately before 1 April 2022 continues in force on and after that date:
(a) as if it were an authorisation given under subsection 27(3) of this Ordinance; and
(b) subject to the same conditions (if any) to which the old authority was subject.
162 Commercial activities
An agreement entered into with a person under section 33 of the old Ordinance, with respect to the undertaking of a commercial activity by that person in a lake area, that was in effect immediately before 1 April 2022 continues in effect on and after that date as if it were an agreement entered into with that person under section 35 of this Ordinance in relation to the person undertaking that commercial activity.
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