Marine (Further Amendment) Act 2001 (Vic)
Marine (Further Amendment) Act 2001
Act No. 77/2001
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY MATTERS 1
1. Purpose 1 2. Commencement 2
PART 2—DIRECTOR OF MARINE SAFETY 3
3. Definitions 3 4. Changes to headings 3 5. Substitution of section 63 3
63. Director of Marine Safety 3
6. Additional functions of the Director 3 7. Substitution of section 66 4
66. Powers of the Director 4
8. Substitution of sections 68–71 6
68. Director must comply with the Minister's directions 6 69. Delegation 6 70. Restriction on whom the Director may authorise to act under specific sections 7 71. Advisory committees 7
9. Insertion of sections 150–153 8 Division 3—Transitional provisions—Marine (Further Amendment) Act 2001 8
150. Definitions 8 151. Transition from Marine Board to Director representing the Crown 9 152. Winding-up of the Marine Fund 11 153. Transfer of staff 11
PART 3—ENFORCEMENT 14
10. Substitution of section 82 14
82. Appointment of inspectors 14 82A. Inspector's identity card 14 82B. Production of identity card 15 82C. Offence to impersonate an inspector 15
i
Section Page
82D. Functions of inspectors 15
11. Changes concerning powers of inspectors 16 12. Offences concerning inspectors 18 13. Insertion of sections 83B–83D 18
83B. Requirement to give name and address 18 83C. Identity of vessel owner or master must be disclosed 20 83D. Extension of detention time 20
14. Investigations by Director 21 15. Insertion of sections 84A–84C 21
84A. Extension of suspension pending investigation 21 84B. Action by the Director following investigation 21 84C. Public release of report 23
PART 4—LOCAL AUTHORITIES FOR DESIGNATED PORTS 24
16. Change to definition and heading 24 17. Substitution of section 112 24
112. Establishment of local authorities for designated ports 24 112A. Functions of local authorities 24
Division 2—Powers of Local Authorities 26
112B. General powers of local authorities 26
112C. Delegation 27 112D. Charges 27 112E. Dredging 28
112F. Other works 28 112G. Local authority may act as harbour master if there is no harbour master 29
Division 3—Regulations 29 112H. Regulations 29
112I. Saving of existing local authorities 31
PART 5—PROVISIONS CONCERNING POLLUTION 32
18. Updating of definition 32 19. Extension of powers concerning pollution 32 20. Additional particular power of the Director 33 21. Power of Director concerning pollution 33
PART 6—MISCELLANEOUS MATTERS 35
ii
Section Page
22. Definitions 35 23. Duty of owner or person in charge if accident occurs 36 24. Assistance to people in distress 36 25. Evidence of testing and sealing 36 26. Substitution of section 91 37
91. Offence to interfere etc. with navigation aid 37
27. Substitution of section 92 37
92. Offence to obstruct authorised person 37
28. Insertion of sections 99A and 99B 38
99A. Order to remove obstructions in navigable waters 38 99B. Director may remove obstructions to navigation 39
29. Service of documents 39 30. Additional regulation-making powers 40
PART 7—CONSEQUENTIAL AMENDMENTS 42 31. Amendments consequential on the abolition of the Marine
Board 42 32.
Consequential amendments to other Acts 45
═══════════════
ENDNOTES 48
iii
Victoria
No. 77 of 2001
Marine (Further Amendment) Act 2001†
[Assented to 27 November 2001]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is to amend the Marine
Act 1988—
(a)
to provide for the abolition of the Marine Board of Victoria and the establishment of the office of Director of Marine Safety to perform the functions previously performed by the Board; and
(b) to make further provision for—
Marine (Further Amendment) Act 2001
| s. 2 | Act No. 77/2001 |
(i) the enforcement powers conferred by the Act; and
(ii) local authorities for designated ports; and
(c)
to make other miscellaneous amendments to the Act.
2. Commencement
(1) This section and sections 1, 18, 22, 23(1), 23(2), 24, 25, 26 and 29 come into operation on the day after the day on which this Act receives the Royal Assent.
(2) Parts 2 and 7 come into operation on 7 February
2002.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(4) If a provision of this Act does not come into
operation before 1 January 2003, it comes into
operation on that day.
_______________
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 3
PART 2—DIRECTOR OF MARINE SAFETY
3. Definitions
In section 3(1) of the Marine Act 1988—
(a) the definition of "Board" is repealed;
(b) insert the following definition—
' "Director" means the Director of MarineSafety referred to in section 63;'.
4. Changes to headings
In the Marine Act 1988—
(a) in the heading to Part 8, for "MARINE BOARD OF VICTORIA" substitute "ADMINISTRATION AND ENFORCEMENT";
(b)
in Part 8, in the heading to Division 1, for "Establishment of the Board" substitute "Director of Marine Safety".
5. Substitution of section 63
For section 63 of the Marine Act 1988
substitute—"63. Director of Marine Safety
There is to be a Director of Marine Safety
employed under Part 3 of the Public SectorManagement and Employment Act 1998.".
6. Additional functions of the Director
(1) Insert the following heading to section 65 of the
Marine Act 1988—
"Functions of the Director";
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| s. 7 | Act No. 77/2001 |
(2) In section 65 of the Marine Act 1988—
(a)
for "Board" (wherever occurring) substitute "Director";
(b)
after paragraph (c) insert— "(ca) to advise the Minister on the operation
and administration of the Act, the
regulations, marine pollution legislation
and marine safety matters, and on any
other matters referred for advice by the
Minister; and
(cb) to provide guidance and information on marine safety matters; and
(cc) to commission and sponsor research into marine safety matters; and
(cd) to promote education and training in marine safety; and
(ce) to ensure that adequate means exist in
ports to enable an effective response to marine pollution incidents within ports; and
(cf) to take action to deal with marine
pollution incidents occurring in State waters that are not port waters; and";
(c)
in paragraph (l), before "this or" insert "or under".
7. Substitution of section 66
For section 66 of the Marine Act 1988
substitute—
"66. Powers of the Director(1) The Director may do all things that are
necessary or convenient to enable him or her
to carry out his or her functions, including,
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 7 but not limited to, the powers specified in
Schedule 4.(2) Despite sub-section (1), the Director must not exercise any of his or her powers in a way that is inconsistent with the regulations.
(3) Subject to the approval of the Minister, the Director may on behalf of the Crown—
(a) acquire, hold or dispose of real or personal property; (b) participate in the formation of a body;
(c)
subscribe for or otherwise acquire, and hold and dispose of, shares in or debentures or other securities of, a corporation;
(d)
become a member of a company limited by guarantee;
(e)
subscribe for or otherwise acquire, and hold and dispose of, units in a trust;
(f)
acquire, and hold and dispose of, an interest in a partnership or other body;
(g)
enter into partnership or into any arrangement for sharing of profits, union of interest, co-operation, joint venture, reciprocal concession or otherwise, with any person or body carrying on or engaged in, or about to carry on or engage in, any business or transaction whether within or outside the State relating to, or connected with, any function of the Director;
(h) engage consultants, contractors or
agents.
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(4) Without limiting the powers conferred by
sub-sections (1) and (3), the Director may on
behalf of the Crown enter into any
agreement, lease or licence.".
8. Substitution of sections 68–71
For sections 68 to 71 of the Marine Act 1988
substitute—"68. Director must comply with the Minister's
directions
(1) In carrying out any function or exercising
any power, the Director is subject to the
general direction and control of the Minister.
(2) The Director must comply with any specific written direction given to him or her by the Minister in relation to a matter or class of
matter.
69. Delegation
(1) The Director may delegate, in writing, any
power conferred on the Director by or under
this Act to—
(a) any employee of the Department of Infrastructure; or (b) an officer or employee of the Victorian Channels Authority or of a local authority; or (c) with the consent of the Minister, any other person or class of person. (2) Despite sub-section (1), the Director must not delegate—
(a)
the power to enter into agreements, leases or licences on behalf of the Crown; or
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 8
(b) the power of delegation conferred by this section. (3) A delegation under this section may be conferred on the holder of an office or position or on a named person.
70. Restriction on whom the Director may authorise to act under specific sections
(1) The Director may only authorise a person to act for the purposes of section 13(1), 18, 19, 21, 60(1), 60(2), 85A or 87(1) if the person is—
(a) an employee of the Department of Infrastructure; or (b) an officer or employee of the Victorian Channels Authority or of a local authority; or (c) an inspector appointed under
section 82; or(d) a person who has been, or who is a member of a class of person that has been, approved by the Minister to act as an authorised person for the purposes of that section. (2) The Director must make any authorisation
made for the purposes of any section listed in
sub-section (1) in writing.
71. Advisory committees
(1) The Minister may establish advisory
committees to advise the Minister or the
Director on marine safety matters.
(2) In establishing an advisory committee, the
Minister must specify the terms of reference of the committee.
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| s. 9 | Act No. 77/2001 |
(3) The Minister—
(a) is responsible for appointing the members of an advisory committee; and (b) of appointment (including the
is to determine the terms and conditions allowances (if any)) of each member of an advisory committee.
(4) The Minister must publish notice of the establishment of an advisory committee, together with the terms of reference of the
committee, in the Government Gazette.
(5) The Minister may dissolve an advisory
committee at any time by publishing notice
of the dissolution in the GovernmentGazette.
(6) The Minister may amend or replace the
terms of reference of an advisory committee by publishing the amendment or replacement in the Government Gazette.
(7) An advisory committee may regulate its own
procedure.".
9. Insertion of sections 150–153
Before the Schedules to the Marine Act 1988 insert—
'Division 3—Transitional provisions—Marine
(Further Amendment) Act 2001
150. Definitions
In this Division—
"Board" means the Marine Board ofVictoria established under this Act as in
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 9 force immediately before the relevant
day;"relevant day" means the date of
commencement of section 9 of the
Marine (Further Amendment) Act
2001;
"transferred employee" means a person
who, immediately before the relevant
day, was an employee of the Board.
151. Transition from Marine Board to Director representing the Crown
(1) On the relevant day—
(a) the Board is abolished and each person holding office as a director of the board of directors of the Board goes out of office; and
(b)
all rights, property and assets that, immediately before the relevant day, were vested in the Board, vest in the Director on behalf of the Crown; and
(c)
all debts, liabilities and obligations of the Board existing immediately before the relevant day, become debts,
liabilities and obligations of the
Director, on behalf of the Crown; and(d)
the Director, on behalf of the Crown, is substituted as a party to any proceedings pending in any court or tribunal to which the Board was a party immediately before the relevant day; and
(e)
the Director, on behalf of the Crown, is substituted as a party to any arrangement or contract entered into by or on behalf of the Board and in force
Marine (Further Amendment) Act 2001
| s. 9 | Act No. 77/2001 |
| immediately before the relevant day; and |
(f) or in any proclamation, Order in
Council, rule, regulation, order,
agreement, instrument, deed or other
document, so far as it relates to any
period after the relevant day, and if not
inconsistent with the context or subject-any reference to the Board in any Act reference to the Director, on behalf of the Crown.
(2) Nothing effected under sub-section (1) or
done or suffered under sub-section (1)—
(a)
is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong;
(b)
is to be regarded as placing any person in breach of, or as constituting a default under any Act or other law or
obligation or any provision in any
agreement or understanding, including,
but not limited to, any provision or
obligation prohibiting or restricting or
regulating the assignment, transfer, sale
or disposal of any property or the
disclosure of any information;(c)
is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in
respect of or to terminate any
agreement or obligation; or(d)
is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 9 the termination of any contract or
instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or
(e)
is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or
(f)
is to be regarded as frustrating any contract; or
(g)
releases any surety or other obligor wholly or in part from any obligation.
152. Winding-up of the Marine Fund Marine Fund immediately before the relevant day is to be paid into the Consolidated Fund.
153. Transfer of staff
(1) A transferred employee is to be regarded
as—
(a) having been employed under Part 3 of the Public Sector Management and Employment Act 1998, with effect from the relevant day; and
(b) despite section 151 being employed from the relevant day by the Secretary; and (c) having been so employed on the same terms and conditions as those that applied to him or her immediately before the relevant day as an officer or employee of the Board; and (d) having accrued an entitlement to employment under Part 3 of the Public
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| s. 9 | Act No. 77/2001 |
| Sector Management and equivalent to the entitlement that he or she had accrued, as an officer or employee of the Board, immediately before the relevant day. |
(2) The service of a transferred employee as an employee under Part 3 of the Public Sector Management and Employment Act 1998 is
to be regarded for all purposes as having
been continuous with the service of the
transferred employee, immediately before
the relevant day, as an officer or employee of
the Board.(3) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an officer
or employee of the Board because of the
operation of this section.(4) A certificate purporting to be signed by the Secretary certifying that a person named in the certificate was, with effect from the
relevant day, employed, by virtue of this is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it.
section, under Part 3 of the Public Sector(5) The superannuation entitlements of a
transferred employee are to be taken not to
be affected by that person becoming a
transferred employee.
(6) Nothing in this section prevents—
(a)
any of the terms and conditions of employment of a transferred employee from being altered by or under any law,
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 9 award or agreement with effect from
any time after the relevant day; or
(b) or being dismissed at any time after that
a transferred employee from resigning then existing terms and conditions of his or her employment under Part 3 of the Public Sector Management and Employment Act 1998.'.
_______________
Marine (Further Amendment) Act 2001
| s. 10 | Act No. 77/2001 |
PART 3—ENFORCEMENT
10. Substitution of section 82
For section 82 of the Marine Act 1988
substitute—"82. Appointment of inspectors
(1) The Director may, from time to time, appoint
Infrastructure or a person engaged by the
an employee of the Department of this Act. (2) The Director may exercise any of the powers of an inspector.
82A. Inspector's identity card
(1) The Director must issue an identity card to each person appointed as an inspector that identifies the person by name as an inspector
under this Act.
(2) The identity card must contain—
(a)
a photograph of the person to whom it is issued; and
(b) the signature of the person.
(3) If a person's authorisation as an inspector is
revoked or expires, he or she must
immediately return his or her identity card to
the Director.
Penalty: 10 penalty units.
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 10
82B. Production of identity card
(1) An inspector must produce his or her identity card for inspection—
(a)
before exercising a power under this Part; and
(b)
at any time during the exercise of a power under this Part, if asked to do so.
Penalty: 10 penalty units.
(2) Sub-section (1) does not apply if an inspector is exercising—
(a)
a power by telephone, radio or other electronic communication device; or
(b)
a power to board a vessel in circumstances in which it is not practicable to produce his or her identity card for inspection.
82C. Offence to impersonate an inspector
A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.
Penalty: 60 penalty units.
82D. Functions of inspectors
An inspector must investigate and report to the Director on any of the following that the Director requires—
(a)
whether this Act and the regulations, and the conditions of any licence or certificate issued or registration granted by the Director, are being complied with;
Marine (Further Amendment) Act 2001
| s. 11 | Act No. 77/2001 |
(b)
any accident or incident reported to a member of the police force, or at a police station, under section 20(1);
(c)
any accident or incident reported to the Director under section 20(3) or 20(4);
(d)
the nature and causes of an alleged accident involving a vessel or of any alleged damage to a vessel;
(e)
the condition and adequacy of any vessel and its equipment;
(f)
any other matter that, in the opinion of the Director, should be investigated for the purposes of this Act.".
11. Changes concerning powers of inspectors
(1) In section 83 of the Marine Act 1988—
(a) for "making a report" substitute "conducting an investigation under section 82D"; (b) after paragraph (a) insert— "(aa) if it is necessary to do so to enable the inspector to board or leave a vessel, direct the master of the vessel or the person operating the vessel—
(i) to stop the vessel; or
(ii) to manoeuvre the vessel in a specified manner or to a specified place; or
(iii) to secure the vessel in a specified manner; and
(ab) detain a vessel for so long as is
necessary for the purposes of the
investigation, up to a maximum period
of 48 hours; and
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 11 (ac) if authorised to do so under
section 83D, detain a vessel for the
period authorised under that section;
and
(ad) direct the master or owner of a vessel or
the person operating a vessel to do
anything necessary to enable the
effective and safe detention of the
vessel; and".
(2) At the end of section 83 of the Marine Act 1988
insert—
"(2) An inspector may enter any land for the
purpose of boarding a vessel (other than land
used for residential purposes).(3) An inspector may do all or any of the
following on any vessel boarded under sub-
section (1)—
(a) search and inspect the vessel;
(b) inspect any thing on the vessel;
(c)
make copies of, or take extracts from, any document;
(d)
seize any thing on the vessel if the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction;
(e)
test any equipment or substance on the vessel;
(f) take samples of any substance;
(g) take measurements;
(h)
take any photographs or make any audio, visual or other recordings that he or she considers necessary;
Marine (Further Amendment) Act 2001
| s. 12 | Act No. 77/2001 |
(i) inspector considers necessary to
use any assistants or equipment the section.".
12. Offences concerning inspectors
In section 83A(1) of the Marine Act 1988—
(a)
in paragraph (a), for "section 82" substitute "section 82D";
(b)
in paragraph (b), for "particular." substitute "particular; or";
(c)
after paragraph (b) insert— "(c) obstruct, hinder, impede or oppose an
inspector who is exercising a power other person to do so; or
given to the inspector by or under this
(d) prevent, or attempt to prevent, any inspector.".
13. Insertion of sections 83B–83D
After section 83A of the Marine Act 1988 insert—
"83B. Requirement to give name and address
(1) This section applies if an inspector believes
on reasonable grounds that a person has
committed an offence against this Act or the
regulations.
(2) The inspector may ask the person to state his or her name and ordinary place of residence or business.
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 13 (3) In making the request, the inspector must
inform the person of the grounds for his or her belief that the person has committed an offence.
(4) A person who, in response to the request—
(a)
refuses or fails to comply with the request without a reasonable excuse for not doing so; or
(b)
states a name that is false in a material particular; or
(c)
states an address other than the full and correct address of his or her ordinary place of residence or business—
is guilty of an offence and liable to a penalty
not exceeding 5 penalty units.(5) If a person states a name and address in
response to a request made under sub-section
(2) and the inspector suspects on reasonable
grounds that the stated name or address may
be false, the inspector may request the
person to produce evidence of the
correctness of the name and address.
(6) The person must comply with the request,
unless he or she has a reasonable excuse for
not doing so.
Penalty: 5 penalty units. (7) It is not an offence for a person to fail to comply with a request made under sub- section (2) or (5) if the inspector did not inform the person, at the time the request was made, that it is an offence to fail to
comply with the request.
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| s. 13 | Act No. 77/2001 |
83C. Identity of vessel owner or master must be
disclosed
(1) This section applies if an inspector—
(a) needs to establish the identity or location of the owner or master of a vessel for the purposes of an investigation; and (b) believes has information concerning
asks a person whom the inspector information.
(2) The person must give the inspector all the
information the person has regarding the
identity and location of the owner and master
of the vessel.
Penalty: 5 penalty units.
(3) It is not an offence for a person to fail to
comply with sub-section (2) if the inspector
did not inform the person, at the time the
request for the information was made, that it
is an offence to fail to comply with the
request.
83D. Extension of detention time
(1) An inspector may apply to a magistrate for
an order extending the period for which a
vessel may be detained.
(2) The magistrate may make the order if he or
she is satisfied that there is reasonable cause
to do so.
(3) In making an order, the magistrate must
specify the period for which the extension
applies.".
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 14
14. Investigations by Director
(1) In section 84(1) of the Marine Act 1988, for "The
Board or any inspector or person appointed by it for the purpose may make an investigation if the Board" substitute "The Director may conduct an investigation if the Director";
(2) In section 84(1B)(a) of the Marine Act 1988, for
"72 hours" substitute "14 days".
15. Insertion of sections 84A–84C
After section 84 of the Marine Act 1988 insert—
"84A. Extension of suspension pending
investigation
(1) The Victorian Civil and Administrative
Tribunal may extend the period of a suspension imposed—
(a) by the Director under section 84(1B); or (b) by the Tribunal under this section. (2) The Tribunal may only extend the period of
a suspension—
(a) on the application of the Director; and
(b)
if it is satisfied that there is reasonable cause to do so.
(3) In extending a period of suspension, the
Tribunal must specify the period for which the extension applies.
84B. Action by the Director following
investigation
(1) On the completion of an investigation under
section 84, the Director may, in relation to
any person who was given an opportunity to
make a defence under that section—
Marine (Further Amendment) Act 2001
| s. 15 | Act No. 77/2001 |
(a) take no action;
(b) reprimand the person;
(c) take action under section 85 to cancel or suspend any certificate, licence or registration held by the person under this Act; (d) impose or vary conditions on any by the person under this Act;
(e) replace any certificate, licence or with an authority of a lesser nature;
(f) authority that has granted a licence,
certificate, registration or otherinform any other marine safety taken under this section or section 85;
(g) Prosecutions or other relevant law
enforcement agency that criminal orrecommend to the Director of Public the person.
(2) Within 21 days of determining what action
he or she will take in relation to an
investigation, the Director must give the
person—
(a)
a copy of the final investigation report; and
(b) written notice of the action.
(3) Nothing in sub-section (1) is intended to
restrict the Director to doing one thing only, nor to restrict the Director from taking action in relation to only one certificate, licence,
registration or other authority.
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 15 84C. Public release of report
(1) At the completion of an investigation under
section 84, the Director may make public the
report of the investigation or any part of the
report.
(2) During the course of an investigation under
section 84, the Director may make public
any findings, interim findings or
recommendations arising out of the
investigation.
(3) However, the Director may only make a
report, part of a report, finding or
recommendation public if—
(a) in the opinion of the Director, it is in the public interest to do so; and (b) finding or recommendation will not be
likely to prejudice the rights of any
person in any criminal proceedings thatthe making public of the report, part, the matter that was investigated.".
_______________
Marine (Further Amendment) Act 2001
| s. 16 | Act No. 77/2001 |
PART 4—LOCAL AUTHORITIES FOR DESIGNATED PORTS
16. Change to definition and heading
(1) In section 3(1) of the Marine Act 1988, in the definition of "local authority"—
(a) in paragraph (b), after "waters;" insert "or";
(b)
after paragraph (b) insert— "(c) a person or body declared under Part 10
to be a local authority for a designated
port;".
(2) In Part 10 of the Marine Act 1988, for the
heading to Division 1 substitute—
"Division 1—Establishment of Designated Ports and Local Authorities".
17. Substitution of section 112
For section 112 of the Marine Act 1988 substitute—
"112. Establishment of local authorities for
designated ports
The Minister may, by Order published in the Government Gazette, declare a person or body that is a committee of management under the Crown Land (Reserves) Act 1978 in respect of Crown land within a designated port to be the local authority for the designated port.
112A. Functions of local authorities
(1) A local authority for a designated port has the following functions—
(a)
to manage the operations of the port, particularly with respect to shipping and boating activities in the port, with a
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 17 view to ensuring that those operations
are carried out safely, efficiently and
effectively;
(b) facilities, including wharves, jetties,
to provide, develop and maintain port buildings and vehicle parks;
(c) accordance with any relevant standards
to provide, develop and maintain, in aids in the port;
(d) accordance with any relevant standards
to provide, develop and maintain, in channels in the port;
(e)
to manage the operations of the port, and the construction and operation of port facilities and navigation channels in a manner that minimises the risk of environmental damage;
(f)
to participate in the control of marine and land pollution in the port as a relevant statutory authority under the Victorian component of the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances;
(g)
to allocate and manage moorings and berths in the port;
(h)
to do anything else in relation to the port that is specified by the Minister in a declaration in an Order published in the Government Gazette.
Marine (Further Amendment) Act 2001
| s. 17 | Act No. 77/2001 |
(2) The Minister may declare, by Order published in the Government Gazette—
(a) that local authorities are to have designated ports;
(b) that a particular local authority is to have an additional function in relation to its designated port or to a specified part of its designated port; (c) that a particular local authority is not to have a particular function (including a function referred to in sub-section (1)) in relation to its designated port or to a specified part of its designated port. (3) In making a declaration, the Minister must
specify in the declaration the function that is
being added or removed.
(4) A declaration takes effect on the day after
the day the Order is published in the specified in the Order.
Division 2—Powers of Local Authorities
112B. General powers of local authorities
(1) A local authority may do all things that are
necessary or convenient to enable it to carry
out its functions under section 112A.
(2) Without limiting sub-section (1), a local authority may—
(a) agreements (including contracts of
enter into other contracts and provision of services or facilities);
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 17
(b)
employ staff, or engage consultants, contractors or agents.
112C. Delegation
A local authority may delegate, in writing, any power conferred on it by or under this Act (other than this power of delegation) to
any of its employees.
112D. Charges
(1) The local authority for a designated port may impose a charge for the use of any facility in the port.
(2) A reference to the use of a facility includes a
reference—
(a) to the use of a channel in the port; and
(b) to the use of any service provided by the local authority. (3) The amount of a charge imposed under this
section in respect of a facility must not
exceed the maximum charge (if any) that the
regulations state is to be the maximum
amount that may be charged by a local
authority for the use of such a facility.
(4) In imposing a charge under this section, the local authority may—
(a) make allowances for differences in time, place or circumstance relating to the use of the facility for which the charge is being imposed; and (b) may provide for exemptions from the charge in specified circumstances. (5) In imposing a charge, the local authority
must specify who is to be liable for paying
the charge.
Marine (Further Amendment) Act 2001
| s. 17 | Act No. 77/2001 |
(6) The local authority must ensure that it does not impose a charge on a person for using a facility unless it gave the person adequate
notice of the charge before the person
became liable to pay the charge.(7) A charge imposed under this section is a debt
due to the local authority by the person who
is liable to pay it.
(8) A local authority may charge interest at the
rate not exceeding the rate fixed under
section 3 of the Penalty Interest Rates Act
1983 on any unpaid charge that is due to the
local authority.
112E. Dredging
Subject to obtaining any permit, consent or
other authority required by or under any
other Act, the local authority for a designatedport may, in carrying out its functions—
(a)
alter, dredge, cleanse, scour, straighten and improve the bed and channel of any river or sea-bed in port waters;
(b)
reduce or remove any banks or shoals within any such river or sea-bed;
(c)
abate and remove impediments, obstructions and nuisances in, or on the banks and shores of, any such river or sea-bed that are injurious to the river or sea-bed or that obstruct, or that may tend to obstruct, navigation.
112F. Other works
Subject to obtaining any permit, consent or other authority required by or under any other Act, in carrying out its functions in relation to the provision, development and
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 17 maintenance of port facilities, a local authority for a designated port may—
(a)
change the natural or existing condition or topography of land;
(b) remove vegetation or topsoil;
(c) reclaim or decontaminate land;
(d) construct, demolish or substantially
alter any structure in or on land;(e) remove, decommission or make safe any existing facility.
112G. Local authority may act as harbour master if there is no harbour master
(1) This section applies if there is no harbour master for a designated port.
(2) Sections 26D, 26E, 26F, 26G and 26I apply
as if a reference in that Part to a harbour
master was a reference to the local authority
for the port.
Division 3—Regulations
112H. Regulations
(1) The Governor in Council may, with respect to designated ports generally or with respect to a specified designated port, make
regulations for or with respect to—
(a) the management of the ports or port;
(b)
the conduct and behaviour of people within the ports or port, and the conditions on which people may be admitted to, or excluded from, any part of the ports or port;
Marine (Further Amendment) Act 2001
| s. 17 | Act No. 77/2001 |
(c)
traffic co-ordination and the movement and the parking of vehicles within the ports or port;
(d)
prescribing any other matter or thing authorised or required to be prescribed or necessary or convenient to be prescribed for carrying this Act into effect with respect to the ports or port.
(2) The regulations—
(a) may apply—(i) at all times or at a specified time; or
(ii) throughout the whole of the area of the ports or port or in a specified part of that area only;
(b)
may differ according to differences in time, place or circumstance;
(c)
may require a matter affected by the regulations to be—
(i) in accordance with a specified or
(ii) approved by, or to the satisfaction of, a specified person or a specified class of person; or
(iii) as specified in both sub-
paragraphs (i) and (ii);
(d) may apply, adopt or incorporate any whether—
(i) wholly or partially or as amended by the regulations; or
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 17 (ii) as in force at a particular time or as in force from time to time;
(e)
may confer a discretionary authority or impose a duty on a specified person or a specified class of person;
(f)
may provide, in a specified case or class of case, for the exemption of people or things from any of the
provisions of the regulations, whether
unconditionally or on specified
conditions, and either wholly or to the
extent specified;(g)
may impose a penalty not exceeding 5 penalty units for a contravention of the regulations.
112I. Saving of existing local authorities
Any local authority for a designated port that was the local authority for that port immediately before the date of commencement of section 17 of the Marine (Further Amendment) Act 2001 is deemed to be the same body despite any changes made to its functions or powers by that section.".
_______________
Marine (Further Amendment) Act 2001
| s. 18 | Act No. 77/2001 |
PART 5—PROVISIONS CONCERNING POLLUTION
18. Updating of definition
In section 3(1) of the Marine Act 1988, in the
definition of "Victorian Marine PollutionContingency Plan"—
(a) after "Sea by Oil" insert "and Other Noxious and Hazardous Substances"; (b) Victorian State Disaster Management Plan"
substitute "accordance with the state
emergency response plan prepared underfor "compliance with the requirements of the Act 1986".
19. Extension of powers concerning pollution
For section 38(1) of the Marine Act 1988
substitute—"(1) If a prohibited discharge occurs, or is likely
to occur, the appropriate authority or any
public statutory body may—
(a)
do anything necessary to prevent the discharge from occurring;
(b)
do anything necessary to mitigate the effect the discharge has, or will have, on the marine environment, any marine
habitat (including any habitat used for
aquaculture) or any marine or other
wildlife;(c)
remove, disperse, destroy or mitigate the discharge or any thing polluted by the discharge;
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 20
(d)
reinstate or restore any land, building, structure or vessel that has been damaged by the discharge.".
20. Additional particular power of the Director
In Schedule 4 to the Marine Act 1988, after clause 21 insert—
"21A. To enter into agreements with any person or body concerning the provision of services or facilities in relation to marine pollution incidents.".
21. Power of Director concerning pollution
(1) In Schedule 4 to the Marine Act 1988, for
clause 22 substitute—
"22. To direct—
(a) local authorities, channel operators, port operators (as defined in the Port Services Act 1995), committees of management of Crown land within designated ports, oil terminal operators and chemical terminal operators; and (b) any other person or body, or person or body who is a member of a class of person or body, specified in an Order made by the Governor in Council for the purposes of this clause and published in the Government Gazette— to participate in the Victorian Marine Pollution Contingency Plan by providing and maintaining equipment, training personnel and responding to marine pollution incidents as directed by the
Director.".
(2) After section 153 of the Marine Act 1988
insert—
"154. Saving of existing Orders
The substitution of clause 22 of Schedule 4 by section 21(1) of the Marine (Further Amendment) Act 2001 does not affect the validity of any Order made under that clause
Marine (Further Amendment) Act 2001
| s. 21 | Act No. 77/2001 |
that was in force immediately before the date
of commencement of that section.".
_______________
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 22
PART 6—MISCELLANEOUS MATTERS
22. Definitions
In section 3(1) of the Marine Act 1988—
(a) the definitions of "coastal waters" and "speed" are repealed; (b) for the definition of "marine infringement" ' "marine infringement" means—
(a) requirement in a notice published
under section 15 (and which isa contravention of a specific 15(3));
(b) any other offence against this Act or the regulations—
prescribed for the purposes of Part 7;'; ' "navigation aid" means a device used for
(c) for the definition of "navigation aid" navigation, and includes a beacon, buoy, marine mark, light house and light ship, but does not include a device
on board a vessel;';
(d) for the definition of "Uniform Shipping ' "Uniform Shipping Laws Code" means
the Uniform Shipping Laws Code
adopted by the Australian Transport
Council and notified in the
Commonwealth of Australia Gazette;'.
Marine (Further Amendment) Act 2001
s. 23
| s. 25 | Act No. 77/2001 |
23. Duty of owner or person in charge if accident occurs
(1) After section 20(1) of the Marine Act 1988
insert—
"(1A) If the vessel involved in the accident did not
have anyone on board at the time the
accident occurred, the owner, or the person
in charge, of the vessel must as soon as
possible after becoming aware of the
accident comply with sub-section (1) as far
as circumstances permit.".
(2) In sections 20(3) and 20(4) of the Marine Act
1988, for "or fishing vessel" substitute ", fishing
vessel or hire and drive vessel".
(3) After section 20(4) of the Marine Act 1988
insert—
"(5) The Chief Commissioner of Police maydisclose to the Director any information in the possession of the Chief Commissioner concerning any accident involving a vessel on State waters or any incident in which any
vessel or person is placed at risk of damage
or injury.".
24. Assistance to people in distress
In section 26(1) of the Marine Act 1988—
(a)
for "people on or from any vessel or aircraft are" substitute "any other person in the vicinity of the vessel is";
(b)
for "those people" substitute "that other person".
25. Evidence of testing and sealing
Marine (Further Amendment) Act 2001
Act No. 77/2001
After section 89(5) of the Marine Act 1988
insert—"(6) A certificate in the prescribed form to the
effect that a prescribed speed measuring
device has been tested or sealed in the
prescribed manner, signed or purporting to
be signed by a person authorised to do so by
the regulations is, without prejudice to any
other mode of proof and in the absence of
evidence to the contrary, proof that thedevice has been so tested or sealed.".
26. Substitution of section 91
For section 91 of the Marine Act 1988
substitute—"91. Offence to interfere etc. with navigation aid
(1) A person must not, without lawful authority,
wilfully or negligently interfere or tamper with, or obstruct the use or operation of, a navigation aid.
(2) A person who contravenes sub-section (1) is guilty of an indictable offence and is liable to a penalty not exceeding imprisonment for
10 years or a fine of 1200 penalty units, or
both.".
27. Substitution of section 92
For section 92 of the Marine Act 1988
substitute—
'92. Offence to obstruct authorised person(1) In this section "authorised person" means
the Director, a person appointed, employed
or engaged by the Director (other than aninspector) or an officer of a local authority.
(2) A person must not—
Marine (Further Amendment) Act 2001
| s. 28 | Act No. 77/2001 |
(a)
obstruct, hinder, impede or oppose an authorised person who is performing a duty or function, or exercising a power,
under this Act or the regulations, or
induce or attempt to induce any other
person to do so; or(b)
prevent or attempt to prevent any other person from assisting an authorised person.
Penalty: 20 penalty units.'.
28. Insertion of sections 99A and 99B
After section 99 of the Marine Act 1988 insert—
'99A. Order to remove obstructions in navigable
waters
(1) In this section "obstruction to navigation"
means anything in, over or on navigable
waters (including a vessel, whether wrecked
or not) that—
(a) is a danger to the safe navigation of vessels; or (b) is moored, berthed or placed in contravention of this Act or the regulations— but does not include anything lawfully erected in, over or on navigable waters.
(2) The Director may direct the owner of, or a
person responsible for, an obstruction to
navigation to remove the obstruction.
(3) The direction must be given in writing and must specify by when the obstruction must be removed.
(4) The person to whom the direction is given
must comply with the direction within the
Marine (Further Amendment) Act 2001
s. 28
s. 29
Act No. 77/2001
time specified in the direction, unless the
person has a reasonable excuse for not doing
so.Penalty: 20 penalty units.
99B. Director may remove obstructions to
navigation
(1) In this section "obstruction to navigation"
has the same meaning as it has in section
99A.
(2) The Director may remove, or authorise the
removal of, any obstruction to navigation.(3) The Director may take action under this section regardless of—
(a) whether or not a direction for the removal of the obstruction has been given under section 99A; or (b) if a direction under section 99A has been given, whether or not the time specified in the direction for compliance with the direction has
expired.(4) Action taken under this section may include
the removal of the obstruction by its
destruction if it is reasonable to do so in the
circumstances.
(5) The Director may dispose of anything removed under this section.
(6) The Director may recover any reasonable costs incurred in taking action under this section as a debt due and payable by the owner of, or the person responsible for, the
obstruction.'.
29. Service of documents
Marine (Further Amendment) Act 2001
Act No. 77/2001
(1) In section 101(3) of the Marine Act 1988, after
"for the vessel" insert "or on the agent for the
owner or operator of the vessel".
(2) After section 101(3) of the Marine Act 1988
insert—
"(4) It is sufficient service for the purposes of thissection if the notice, summons or other document is placed in a secure manner, having regard to the circumstances, in a conspicuous position near the controls of the
vessel.".
30. Additional regulation-making powers
In Schedule 5 to the Marine Act 1988—
(a) after clause 28A insert— "28B. Requirements to be complied with before a certificate of survey may be granted.
28C. Applying any requirements referred to in clause 28B to government vessels.
28D. The issue of, and the conditions applying to, permits for vessels undergoing sea trials.";
(b) after clause 30 insert— "30A. The use and maintenance of machinery and other equipment that must be installed in vessels.
30B. Requirements to ensure that machinery and other equipment that must be installed in vessels is accessible.
30C. Requiring and regulating the installation and use of radios and compasses.";
(c) after clause 60G insert—
"60GA. Requirements concerning the disposal of obstructions to navigation removed under section 99B.";
(d) after clause 60K insert—
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 30 "60L. The provision, use and maintenance of navigation lights or shapes.
60M. The provision, use and maintenance of sound
signalling devices.
60N. The carriage of stability data.
60O. Requiring operators of vessels and passengers to wear or carry safety equipment.
60P. The operation of hire and drive vessels.";
(e) after clause 65 insert— "65A. The refuelling of vessels if passengers are on
board.
65B. Prohibiting passengers from doing anything
(including smoking) that might create a risk of
explosion while a vessel is being refuelled.";
(f) after clause 107 insert— "MISCELLANEOUS
108.
The suspension or cancellation of any licence, certificate or registration granted under this Act if the holder of the licence, certificate or registration has used a vessel to commit any offence against any Act or regulations.".
_______________
Marine (Further Amendment) Act 2001
| s. 31 | Act No. 77/2001 |
PART 7—CONSEQUENTIAL AMENDMENTS
31. Amendments consequential on the abolition of the Marine Board
(1) In the Marine Act 1988—
(a) in section 3(1), in the definitions of "licensed harbour master" and "pilotage services provider", for "Board" substitute "Director"; (b) in sections 8(1), 10, 11, 12, 14(1), 15, 16, 20, 26J, 26K, 26M, 26N, 26O, 26P, 26R(2)(b), 26S, 28C(4), 38(4), 58, 61BA(4), 66B, 66D, 67, 78, 82, 84, 85, 87, 89, 91A, 92A, 98, 101A, 105(4), 106, 108(1), 116, 117, 118, 119, 120, 121, 122, 125, 127, 128 and 132, for "Board" (wherever occurring) substitute "Director";
(c)
for section 13(1)(a) substitute— "(a) an inspector appointed under
section 82;
(b)
any other person who is authorised by the Director for the purposes of this section;";
(d) insert the following heading to section 15—
"Director may regulate or prohibit
operation";
(e)
in sections 18, 19, 21, 60(1) and 60(6), for "an officer of the Board who is authorised by the Board" substitute "a person who is authorised by the Director";
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 31
(f) insert the following heading to section "Requirement to notify the Director of
changes to registration information"; in section 26S(4), for "it" substitute "the Director";
(g) (h)
in section 34(1), in the definition of "appropriate authority", for "Board" substitute "Director".
(2) In the Marine Act 1988—
(a) in section 58—
(i) in sub-section (7), for "its opinion" Director";
(ii) in sub-section (8)—
(A) for "President of the Board"substitute "Director";
(B) for "by it" substitute "by the
Director";
(b)
sections 64 and 72 to 77 and Division 2 of Part 8 are repealed;
(c) in section 66A(1)—
(i) for "Board may" substitute "Minister may";
(ii) for "by the Board" substitute "by the Director";
(d)
in section 66A(2)(b), for "Board" substitute "Minister";
Marine (Further Amendment) Act 2001
| s. 31 | Act No. 77/2001 |
(e) in section 66B—
(i) in sub-section (1), omit "itself";
(ii) in sub-sections (2) and (3), for "by it" substitute "by the Director";
(f) insert the following heading to section "Protection of Director from liability";
(g)
in section 66C(1), for "A director of the Board" substitute "The Director";
(h) in section 66C(2)—
(i) for "a director of the Board" substitute "the Director";
(ii) for "director" substitute "Director".
(3) In the Marine Act 1988—
(a)
in section 78(4), for "it" (wherever occurring) substitute "the Director";
(b)
in section 85A, for "an officer of the Board or other person authorised by the Board" substitute "a person authorised by the Director";
(c)
in section 87(1)(b), for "officer of the Board who is authorised by the Board" substitute "person who is authorised by the Director";
(d) in section 93—
(i) in sub-section (1), for "an officer of the Board or of a local authority" substitute "a person who is employed or engaged to provide services for the Director or a local authority,";
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 32 (ii) in section (2), for "An officer of the Board or of a local authority" substitute "A person who is employed or engaged to provide services for the Director or a local authority,";
(e) in section 98(6)(b), for "to it" substitute "to the Director"; (f) insert the following heading to section "Cancellation, suspension or variation of a
licence and revocation of endorsement by
the Director";
(g) insert the following heading to section "Power of Director to require tests to be
undergone";
(h) in the heading to Schedule 4, for "BOARD" substitute "DIRECTOR"; (i) in Schedule 4, in clauses 18A and 20, for "Board" (wherever occurring) substitute "Director";
(j) in Schedule 5, in clauses 6, 8, 13, 16, 28, 55, 56, 95, 96, 97, 98, 99, 102, 103 and 106, for "Board" (wherever occurring) substitute "Director".
32. Consequential amendments to other Acts
(1) In section 15(1) of the Litter Act 1987—
(a)
for "Marine Board of Victoria" substitute "Director of Marine Safety";
(b)
after "from a corresponding" insert "person or".
Marine (Further Amendment) Act 2001
| s. 32 | Act No. 77/2001 |
(2) In section 279(3) of the Melbourne and
Metropolitan Board of Works Act 1958—
(a) for "Marine Board of Victoria" substitute "Director of Marine Safety"; (b) for "Marine Board" substitute "Director of Marine Safety".
(3) In the Pollution of Waters by Oil and Noxious Substances Act 1986—
(a)
in section 3(1), omit the definition of "Marine Board";
(b) in section 37(1)—
(i) for "Marine Board is" substitute "Director of Marine Safety is";
(ii) for "Marine Board may" substitute "Director may".
(4) In the Port Services Act 1995—
(a) in section 3—
(i) in the definition of "licensed harbour "Director of Marine Safety";
(ii) the definition of "Marine Board" is repealed;
(b)
in sections 21(1), 84, 86(4), 87(3), 90 and 93(1), for "Marine Board" (wherever occurring) substitute "Director of Marine Safety";
(c) section 49(c)(vi) is repealed;
(d)
in section 55(2), for "Marine Board of Victoria" substitute "Director of Marine Safety";
Marine (Further Amendment) Act 2001
Act No. 77/2001 s. 32
(e) "designated agency", for paragraph (b)
in section 117, in the definition of "(b) the Director of Marine Safety;".
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Marine (Further Amendment) Act 2001
| Endnotes | Act No. 77/2001 |
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 18 October 2001
Legislative Council: 20 November 2001
The long title for the Bill for this Act was "to amend the Marine Act
1988 and for other purposes."
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