EXPLANATORY STATEMENT
STATUTORY RULES 1990 No. 206
ISSUED BY THE AUTHORITY OF THE
MINISTER FOR DEFENCE
CONTROL OF NAVAL WATERS REGULATIONS (AMENDMENT)
The Control of Naval Waters Act 1918 (“the Act”), together with the Control of Naval Waters Regulations (“the Principal Regulations”), provide a legislative scheme for the control of activities in declared naval waters which could prejudice naval operations or endanger members of the public.
The Principal Regulations, made under the Act, prescribe various matters relating to the control of naval waters.
The Act has been amended by the Control of Naval Waters Amendment Act 1978 (“the Amending Act”) which is at present unproclaimed. The Amending Act, apart from generally clarifying the Act:
• enables the declaration of areas of open sea, as well as internal waters, as naval waters;
• limits declarations of naval waters to waters within specified distances of naval and defence installations; and
• enables the making of regulations to control the activities of individuals in naval waters as well as those of vessels, and activities on the foreshore of naval waters as well as in naval waters.
The amendments contained in this Statutory Rule were required to allow the amendments to the Act to operate effectively. The amendments enable the movement of persons as well as vessels to be controlled in naval waters, and enable the control of activities on the foreshore of naval waters as well as in or on naval waters. These changes were required for public safety as well as operational reasons, for example, to keep swimmers and divers away from vessels and hazardous underwater equipment.
In addition, the Statutory Rule removes obsolete provisions (including provisions dealing with the navigation of vessels that are covered by State or other Commonwealth legislation), replaces the general penalty that applied to all the provisions with specific penalties appropriate to each offence, and generally clarifies the Principal Regulations (for example by removing strict liability offences).
Appropriate authorities in the States and the Northern Territory have agreed to the substance of the Statutory Rule.
The Statutory Rule does not exclude the normal operation of State or Territory law, for example in relation to harbour management or ship control.
A detailed description of the Statutory Rule is attached.
The Statutory Rule comes into operation on the date of commencement of the Amending Act. That Act will be proclaimed to commence on 1 August 1990.
ATTACHMENT
CONTROL OF NAVAL WATERS REGULATIONS (AMENDMENT)
Regulation 1 provides that the Statutory Rule comes into operation on the date of commencement of the Control of Naval Waters Amendment Act 1978.
Regulation 2 defines the Control of Naval Waters Regulations as the Principal Regulations.
Regulation 3 repeals regulation 2 of the Principal Regulations which defined the words “installation”, “Naval Ship” and “Owner”. The definitions of “installation” and “Naval Ship” have been superseded by new definitions in the Act (as amended). The definition of “Owner” is obsolete as a result of the repeal of regulation 27.
Regulation 4 replaces regulations 4 and 5 of the Principal Regulations, which dealt with the delegation of powers and the application of the Regulations, with new provisions dealing with the control of movement in naval waters. The provision dealing with delegations has been replaced by new regulation 35A. The provision dealing with the application of the Regulations was unnecessary, as it merely provided that the Regulations only applied to specified naval waters.
• New regulation 4 enables restrictions to be placed on the entry of vessels and persons into naval waters or specified parts of those waters, and the entry of vehicles and persons onto the foreshore of naval waters or specified parts of that foreshore. These restrictions may only be applied where the superintendent of naval waters is satisfied that this is necessary in the interests of public safety, the safety of property or the defence of the Commonwealth. A restriction may be absolute or subject to any approval given, or condition imposed, by the superintendent. Notice of the restriction must be given to such persons, in such manner, time and place as is reasonably required for the protection of the public or any person who may be affected by the Commonwealth’s use of those waters, having regard to the purpose and time of the Commonwealth’s use of those waters, the risk of injury or damage to persons or property, and the forms of communication and time available for giving the notice. New regulation 4 also provides that a person must not, knowingly or recklessly, contravene the requirements of the notice, and prescribes a penalty of $500 for breach of this provision.
• New regulation 5 enables the removal from naval waters or the foreshore of naval waters of persons who have contravened the Regulations.
Regulation 5 clarifies regulation 6 of the Principal Regulations by providing that the provision will only be breached where vessels impede the approach to installations without reasonable excuse. The amendment also prescribes a penalty of $1000 for breach of this provision.
Regulation 6 amends regulation 7 of the Principal Regulations which provides that vessels shall not, without permission, be made fast to any fort, Commonwealth mooring, buoy, breakwater, jetty, pile or vessel in naval waters. The amendment prescribes a penalty of $500 for a breach of this provision without reasonable excuse. In addition, the amendment prescribes a penalty of $500 where any term or condition of a permission that has been granted is breached without reasonable excuse.
Regulation 7 clarifies regulation 9 of the Principal Regulations by providing that the provision will only be breached where vessels anchor or moor near Commonwealth moorings without reasonable excuse. The amendment also prescribes a penalty of $1000 for breach of this provision.
Regulation 8 clarifies regulation 10 of the Principal Regulations by providing that the provision will only be breached where vessels over 10 metres in length anchor in or near navigable channels of naval waters, or where those vessels are left without a ship-keeper, without reasonable excuse. The amendment also prescribes a penalty of $1000 for breach of this provision.
Regulation 9 amends regulation 11 of the Principal Regulations, which provides that vessels shall not, without permission in writing, dredge, loiter or anchor within 100 metres of an installation or vessel in naval waters. The amendment prescribes a penalty of $1000 for a breach of this provision, without reasonable excuse, and adds new subregulations 11(2), (3) and (4). These new provisions will protect installations in naval waters or on the foreshores of those waters from interference. New subregulation 11(2) prescribes a penalty of $1000 where the master of a vessel, without reasonable excuse, causes or permits interference with an installation in naval waters without permission in writing. New subregulation 11(3) prescribes a penalty of $500 where a person, without reasonable excuse, enters or remains in naval waters or the foreshore of those waters, within 100 metres of an installation or vessel,
without permission in writing. New subregulation 11(4) prescribes a penalty of $1000 where a person, without reasonable excuse, interferes with an installation in naval waters or on the foreshore of those waters without permission in writing.
Regulation 10 replaces regulation 12 of the Principal Regulations, which provided that vessels must not approach installations or other vessels without permission in writing. The substitute provision prescribes a penalty of $500 for a breach of this provision without reasonable excuse and restricts the prohibition to vessels and installations in naval waters.
Regulation 11 amends regulation 13 of the Principal Regulations, which provides that moorings must not be laid in naval waters without permission in writing, by prescribing a penalty of $1000 for a breach of this provision without reasonable excuse.
Regulation 12 clarifies regulation 15 of the Principal Regulations by providing that the provisions will only be breached where vessels anchor within 180 metres of marked electrical cables in naval waters without reasonable excuse. The amendment also prescribes a penalty of $500 for breach of this provision.
Regulation 13 amends regulation 16 of the Principal Regulations which provides that the master of a vessel should notify the superintendent of naval waters when his or her vessel hooks any Commonwealth moorings, electric cables or moorings of buoys in those waters. The amendment ensures that the provision will not only cover anchors but also any other object that is part of or attached to a vessel which hooks onto those objects.
Regulation 14 repeals regulations 17, 18, 19 and 21 of the Principal Regulations which are unnecessary as the navigation rules which they provided are covered by other legislation.
Regulation 15 amends regulation 22 of the Principal Regulations which deals with the manning of vessels in naval waters. The former provision imposed inappropriate mandatory manning requirements. The amendment empowers the superintendent of the waters to require, by notice in writing, that a vessel be sufficiently manned where this is necessary in the interests of safety.
Regulation 16 repeals regulation 23 of the Principal Regulations which is unnecessary, as the maintenance of proper fire appliances on vessels (which the regulation required) is covered by other legislation.
Regulation 17 amends regulation 25 of the Principal Regulations to ensure that fuel, oil or pollutants of any description cannot be deposited in or near naval waters, and prescribes a penalty of $1000 for a breach of this provision without reasonable excuse. The amendment also ensures that this regulation does not affect the operation of any State or Territory law.
Regulation 18 amends regulation 26 of the Principal Regulations, which provides that vessels shall not, without permission, be breamed, careened or cleaned in naval waters, by prescribing a penalty of $1000 for a breach of this provision without reasonable excuse.
Regulation 19 repeals regulation 27 of the Principal Regulations which was obsolete. The removal of vessels sunk in naval waters is covered by section 7 of the Act (as amended).
Regulation 20 replaces regulation 28 of the Principal Regulations which dealt with the speed of vessels in naval waters. The new provision enables directions to be given concerning the speed of vessels in naval waters, or specified parts of those waters. These directions may only be given where the superintendent is satisfied that this is
necessary in the interests of public safety, the safety of property or the defence of the Commonwealth. A direction may be absolute or subject to any approval given, or condition imposed, by the superintendent. Notice of the direction must be given to such persons, in such manner, time and place as is reasonably required for the protection of the public or any person who may be affected by the Commonwealth’s use of those waters, having regard to the purpose and time of the Commonwealth’s use of those waters, the risk of injury or damage to persons or property, and the forms of communication and time available for giving the notice. New regulation 28 also provides that a person must not, knowingly or recklessly, contravene the requirements of the notice, and prescribes a penalty of $500 for breach of this provision.
Regulation 21 replaces subregulation 29(1) of the Principal Regulations, which prohibited the discharge of firearms over naval waters, with a provision which ensures that an offence will only be committed where the firearm is knowingly or recklessly discharged. A penalty of $500 is prescribed for breach of this provision.
Regulation 22 amends regulation 30 of the Principal Regulations which provides that dangerous cargoes are not to be brought into naval waters without permission in writing. The amendment prescribes a penalty of $1000 for a breach of this provision without reasonable excuse. The amendment also omits subregulation 30(4) which provided that it was not a defence that the goods were marked with a false description or were loaded or carried without the knowledge of the master. In some circumstances these matters could form the basis of a reasonable excuse.
Regulation 23 amends regulation 31 of the Principal Regulations which provides that vessels carrying dangerous cargoes in naval waters must exhibit a large red flag or burgee from the vessel’s mast head. The amendment replaces the word mast-head as many vessels no longer have mast heads, and prescribes a penalty of $500 where the master of the vessel fails, without reasonable excuse, to prominently display the flag or burgee.
Regulation 24 repeals regulation 33 of the Principal Regulations which prohibited vessels entering areas of naval waters reserved for mining or gunnery operations, or other naval purposes. The provision was unnecessary in light of new regulation 4.
Regulation 25 amends regulation 34 of the Principal Regulations, which empowers the Minister to prohibit the erection of jetties and similar structures in naval waters or on the foreshore of those waters, by clarifying the scope of the provision and removing obsolete wording.
Regulation 26 inserts a new regulation 35A in the Principal Regulations which provides that the superintendent of naval waters may, by instrument in writing, delegate any of his or her powers or functions under the Regulations to an officer of the Defence Force not below the rank of Lieutenant-Commander, Major or Squadron Leader.
Regulation 27 repeals regulation 36 of the Principal Regulations which prescribed a general penalty of $200 or imprisonment for 6 months for any person who contravened the Regulations. Specific monetary penalties appropriate to each offence have replaced this provision.
Regulation 28 provides for a Schedule which aligns the nomenclature used in the Principal Regulations with that of the Act (as amended).