2008
2008
2008-11-14
act
government
publicspecial
act.reprint
partuncommenced
2008-06-05
2008-06-05
0
2008
none
act-2008-059
13fe8cab-1b61-4261-a36f-ea8d0cbb980c
97ac9c68-0454-469a-96fd-f2445f4f9d03
See
also:
Statute Law (Miscellaneous Provisions)
Bill (No 2) 2008
Proposed
repeal:
The Act is to be repealed by sec 4 (1) of this
Act on the day following the day on which all of the provisions of this Act
have commenced.
An Act to amend the Marine
Safety Act 1998 with respect to boating safety and marine
safety licences; and for other purposes.
1Name of
Act
This Act is the Marine Safety
Amendment Act 2008.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Marine Safety Act 1998 No
121
The Marine Safety Act
1998 is amended as set out in Schedule
1.
4Repeal of
Act
(1)
This Act is repealed on the day following the day
on which all of the provisions of this Act have
commenced.
(2)
The repeal of this Act does not, because of the
operation of section 30 of the Interpretation Act
1987, affect any amendment made by this
Act.
Schedule 1Amendments
(Section 3)
[1]Section 4
Definitions
Insert “and includes a fishing fleet
support vessel within the meaning of that Act” after
“Commonwealth” in the definition of Australian fishing vessel in section
4 (1).
[2]Section 4 (1), definition of
“commercial vessel”
Omit the definition. Insert instead:
commercial vessel means:
(a)
any vessel used or intended to be used for or in
connection with any business or commercial activity, including (but not
limited to) a vessel used or intended to be used wholly or principally
for:
(i)
carrying passengers or cargo for hire or reward,
whether within or outside State waters or in the course of overseas or
interstate voyages, or
(ii)
providing services to vessels for reward,
or
(b)
a vessel used or intended to be used by the Crown
in any capacity.
[3]Section 4
(1)
Insert in alphabetical order:
pleasure
craft has the same meaning as in the Navigation Act
1912 of the Commonwealth.
[4]Section 4
(1)
Omit the definition of Uniform
Shipping Laws Code and the note to that
definition.
[5]Section
9
Omit the section. Insert instead:
9Application of Act to Defence
Force vessels
(1)
Except as provided by this section, this Act does
not apply to or in respect of a vessel belonging to the Defence Force of
Australia or to the naval, military or air forces of any other
country.
(2)
Parts 2 and 3, Division 4 of Part 8 and Schedule
1 apply to and in respect of a vessel belonging to the Defence Force of
Australia (other than a commissioned vessel) and to its master, crew and
passengers.
(3)
In this section, a reference to a commissioned vessel includes a
reference to any vessel carried on board or launched from a commissioned
vessel.
Note—
Section 31 of the Interpretation
Act 1987 provides for an Act to be construed so as not to
exceed the legislative power of Parliament.
[6]Section 11 Speed limits, no
wash zones and other restrictions on operation of vessels in navigable waters
by display of notice
Omit section 11 (4). Insert instead:
(4)
A person who operates a vessel to which a notice
under this section applies in contravention of the notice is guilty of an
offence.
Maximum penalty:
(a)
in the case of a notice restricting the creation
of wash by vessels—50 penalty units, or
(b)
in any other case—10 penalty
units.
[7]Section 12 Restrictions on
operation of vessels in navigable waters during special events by publication
of notice
Omit section 12 (3). Insert instead:
(3)
Such a notice is to be published:
(a)
in a newspaper circulating throughout the State
or, if the Minister approves in a particular case or class of cases, in a
newspaper circulating in the locality concerned, and
(b)
in such other manner as the Minister considers
appropriate.
[8]Section
13
Omit the section. Insert instead:
13Reckless, dangerous or
negligent navigation and other acts
(1)
A person must not operate a vessel in any
navigable waters:
(a)
negligently, or
(b)
recklessly, or
(c)
at a speed or in a manner dangerous to the
public.
Maximum penalty:
(a)
if the operation of the vessel occasions death or
grievous bodily harm—1,000 penalty units (where the vessel is a seagoing
ship), 100 penalty units (where the vessel is any other commercial vessel) or
50 penalty units (where the vessel is a recreational vessel), or imprisonment
for 2 years, or both, or
(b)
if the operation of the vessel does not occasion
death or grievous bodily harm—1,000 penalty units (where the vessel is a
seagoing ship), 100 penalty units (where the vessel is any other commercial
vessel) or 50 penalty units (where the vessel is a recreational
vessel).
(2)
A person who is on a vessel in navigable waters,
or is being towed by such a vessel, must not do anything that is dangerous to
the public.
Maximum penalty: 50 penalty
units.
(3)
In considering whether an offence has been
committed under this section, the court is to have regard to all the
circumstances of the case, including the following:
(a)
the nature and condition of the waters in which
the offence is alleged to have been committed,
(b)
the amount of traffic that actually is at the
time, or which might reasonably be expected to be, in those
waters.
(4)
The higher maximum penalty under paragraph (a) of
the maximum penalty in subsection (1) does not apply unless it is alleged in
the charge for the offence that the conduct concerned occasioned death or
grievous bodily harm.
(5)
In this section:
dangerous
to the public includes anything that causes or is likely to
cause injury to any person or damage to any property.
grievous
bodily harm includes any permanent or serious
disfigurement.
seagoing
ship means a commercial vessel of more than 45.72 metres in
length that is used or intended to be used to carry cargo or passengers for
hire or reward and that normally operates on voyages between
ports.
[9]Section
15A
Insert after section 15:
15APower to give directions
relating to safety on navigable waters
(1)
An authorised officer may give a direction to a
person in, on or near navigable waters if the officer believes on reasonable
grounds that:
(a)
the giving of the direction is necessary to
ensure the safety of any person, or to prevent damage to property, in, on or
near navigable waters, and
(b)
the direction is reasonable in the circumstances
for achieving that objective.
(2)
A person must not fail to comply with a direction
given under this section to the person, whether or not the person may
contravene another provision of the marine legislation by obeying the
direction.
Maximum penalty: 30 penalty
units.
(3)
A person is not guilty of an offence against
subsection (2) unless the authorised officer:
(a)
warned the person at the time of giving the
direction that failure to comply with the direction may constitute an offence,
and
(b)
identified himself or herself as an authorised
officer.
(4)
It is a defence to the prosecution of a person
for an offence against a provision of the marine legislation if, at the time
of the offence, the person was obeying a direction given under this
section.
(5)
Despite any other provision of this section, a
direction given under this section has no effect to the extent to which it is
inconsistent with a direction given by a harbour master under Part
7.
(6)
In this section:
(a)
a reference to a person in, on or near navigable
waters includes a reference to a person on a vessel, water skis or other
apparatus, in, on or near navigable waters, and
(b)
a reference to property in, on or near navigable
waters includes a reference to property on a
vessel.
[10]Section 18 Regulation of
organised aquatic activities in navigable waters
Omit the definition of aquatic activity in section 18 (1).
Insert instead:
aquatic
activity means:
(a)
a race, competition or exhibition (whether or not
involving vessels or equipment) that is conducted in or on any navigable
waters, or
(b)
any other activity (whether or not involving
vessels or equipment) that is conducted in or on any navigable waters and that
restricts the availability of those waters for normal use by the
public.
[11]Section 18
(4)
Insert after section 18 (3):
(4)
A licence or other approval issued by the
Minister for the purposes of this section may include an exemption from a
requirement of this Act or the regulations in respect of any or all of the
following:
(a)
the holder of the licence or
approval,
(b)
any person or class of persons involved in the
conduct of, or taking part in, the aquatic activity to which the licence or
approval relates,
(c)
any vessel used in connection with that
activity.
[12]Part 3
Omit the Part. Insert instead:
Part 3Boating safety—alcohol
and other drug use
Division 1Interpretation
20Definitions
(1)
In this Part and in Schedule 1:
breath
analysing instrument has the same meaning as in the Road Transport (Safety and Traffic Management) Act
1999.
breath
test has the same meaning as in the Road
Transport (Safety and Traffic Management) Act
1999.
drug has the same meaning as it has
in the Road Transport (Safety and
Traffic Management) Act 1999.
juvenile means a person who is not
more than 16 years of age.
major
offence means:
(a)
the crime of murder or manslaughter or an offence
against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, being a crime or
offence by which the death of or bodily harm to another person was caused by
or arose out of the operation of a vessel, or
(b)
an offence against this
Part.
operate a
vessel includes:
(a)
being towed by a vessel, whether on a water ski,
aquaplane, paraflying device or other device, or
(b)
act as observer on a vessel, for safety purposes,
of any person being towed by the vessel, or
(c)
supervise a juvenile operator of a motor
vessel.
(2)
A reference in this Part to a major offence
includes a reference to any such offence committed before the commencement of
this Part.
Note—
A reference to a major offence includes an
offence against Part 2 of the Marine (Boating
Safety—Alcohol and Drugs) Act 1991 committed before
the repeal of that Act by this Act (see clause 3 of Schedule
4).
(3)
An offence against a provision of this Part or
Schedule 1 is a second or
subsequent offence only if, within the period of 5 years
immediately before a person is convicted of the offence, the person was
convicted of another offence against the same provision or of a major
offence.
(4)
An offence against a provision of this Part or
Schedule 1 is a first
offence if it is not a second or subsequent
offence.
21Application of Part and
Schedule 1
(1)
This Part and Schedule 1 apply to all vessels.
However, this Part and Schedule 1 do not apply to a surfboard or similar
device used by a swimmer or surfer to support the swimmer or surfer in the
water (other than a sailboard or a device being towed by a
vessel).
(2)
This Part and Schedule 1 apply to a vessel only
while the vessel is underway.
(3)
This Part and Schedule 1 apply to all waters,
whether or not they are navigable waters.
22Prescribed concentrations of
alcohol
In this Part and in Schedule 1:
(a)
youth
range prescribed concentration of alcohol means a
concentration of more than zero grammes, but less than 0.02 grammes, of
alcohol in 210 litres of breath or 100 millilitres of blood,
and
(b)
special
range prescribed concentration of alcohol means a
concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol
in 210 litres of breath or 100 millilitres of blood, and
(c)
low range
prescribed concentration of alcohol means a concentration of
0.05 grammes or more, but less than 0.08 grammes, of alcohol in 210 litres of
breath or 100 millilitres of blood, and
(d)
middle
range prescribed concentration of alcohol means a
concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol
in 210 litres of breath or 100 millilitres of blood, and
(e)
high
range prescribed concentration of alcohol means a
concentration of 0.15 grammes or more of alcohol in 210 litres of breath or
100 millilitres of blood.
23Measurement of alcohol
concentrations
(1)
For the purposes of this Part and Schedule 1, the
concentration of alcohol present in a person’s breath or blood may be
expressed as follows:
(a)
in the case of a sample of breath that is
measured by a breath analysing instrument or other breath testing device that
provides a reading or result by reference to alcohol present in the
breath—the amount of alcohol in grammes in 210 litres of
breath,
(b)
in the case of a sample of breath that is
measured by a breath analysing instrument or other breath testing device that
provides a reading or result by reference to alcohol present in the
blood—the amount of alcohol in grammes in 100 millilitres of
blood,
(c)
in the case of a sample of blood—the amount
of alcohol in grammes in 100 millilitres of blood.
(2)
An amount of alcohol in grammes present in breath
when measured by reference to 210 litres of breath is equivalent to the same
amount of alcohol in grammes present in blood when measured by reference to
100 millilitres of blood.
(3)
Accordingly, any offence under this Part relating
to the presence of a specified concentration of alcohol in a person’s
breath or blood at the time of the occurrence of a particular event is a
single offence regardless of whether the concentration of alcohol concerned is
measured by reference to the amount of alcohol present in breath or in blood
(or both).
Division 2Offences involving prescribed
concentrations of alcohol
24Presence of prescribed
concentration of alcohol in person’s breath or
blood
(1)Offence—youth range
prescribed concentration of alcohol
A person who is under 18 years of age must not
operate a vessel in any waters while there is present in his or her breath or
blood the youth range prescribed concentration of alcohol.
Maximum penalty: 10 penalty units (in the case of
a first offence) or 20 penalty units (in the case of a second or subsequent
offence).
(2)Offence—special range
prescribed concentration of alcohol
A person must not operate a vessel in any waters
while there is present in his or her breath or blood the special range
prescribed concentration of alcohol if:
(a)
the person is under 18 years of age,
or
(b)
the person is operating the vessel for commercial
purposes.
Maximum penalty: 10 penalty units (in the case of
a first offence) or 20 penalty units (in the case of a second or subsequent
offence).
(3)Offence—low range
prescribed concentration of alcohol
A person must not operate a vessel in any waters
while there is present in his or her breath or blood the low range prescribed
concentration of alcohol.
Maximum penalty: 10 penalty units (in the case of
a first offence) or 20 penalty units (in the case of a second or subsequent
offence).
(4)Offence—middle range
prescribed concentration of alcohol
A person must not operate a vessel in any waters
while there is present in his or her breath or blood the middle range
prescribed concentration of alcohol.
Maximum penalty: 20 penalty units or imprisonment
for 9 months or both (in the case of a first offence) or 30 penalty units or
imprisonment for 12 months or both (in the case of a second or subsequent
offence).
(5)Offence—high range
prescribed concentration of alcohol
A person must not operate a vessel in any waters
while there is present in his or her breath or blood the high range prescribed
concentration of alcohol.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
25Alternative verdicts for
lesser offences
(1)Alternative verdict for lesser
offence in prosecution for middle range prescribed concentration of
alcohol
If, on a prosecution of a person for an offence
under section 24 (4), the court is satisfied that, at the time the person
operated the vessel, there was not present in the person’s breath or
blood the middle range prescribed concentration of alcohol but there was
present in the person’s breath or blood the low range prescribed
concentration of alcohol, the court may convict the person of an offence under
section 24 (3).
(2)Alternative verdict for lesser
offence in prosecution for high range prescribed concentration of
alcohol
If, on a prosecution of a person for an offence
under section 24 (5), the court is satisfied that, at the time the person
operated the vessel, there was not present in the person’s breath or
blood the high range prescribed concentration of alcohol:
(a)
if the court is satisfied that the middle range
prescribed concentration of alcohol was present in the person’s breath
or blood—the court may convict the person of an offence under section 24
(4), or
(b)
if the court is satisfied that the low range
prescribed concentration of alcohol was present in the person’s breath
or blood—the court may convict the person of an offence under section 24
(3).
(3)Alternative verdict for lesser
offence in prosecution of special category persons
If, on a prosecution of a person for an offence
under section 24 (3), (4) or (5), the court is satisfied that, at the time the
person operated the vessel:
(a)
the person was under 18 years of age or the
person was operating the vessel for commercial purposes,
and
(b)
there was not present in the person’s
breath or blood the high range prescribed concentration of alcohol, the middle
range prescribed concentration of alcohol or the low range prescribed
concentration of alcohol, but that there was present in the person’s
breath or blood the special range prescribed concentration of
alcohol,
the court may convict the person of an offence under
section 24 (2).
(4)Alternative verdict for lesser
offence in prosecution of persons under 18
If, on a prosecution of a person for an offence
under section 24 (2), (3), (4) or (5), the court is satisfied that, at the
time the person was operating the vessel:
(a)
the person was under 18 years of age,
and
(b)
there was not present in the person’s
breath or blood the high range prescribed concentration of alcohol, the middle
range prescribed concentration of alcohol, the low range prescribed
concentration of alcohol or the special range prescribed concentration of
alcohol, but that there was present in the person’s breath or blood the
youth range prescribed concentration of alcohol,
the court may convict the person of an offence under
section 24 (1).
26Presence of higher
concentration of alcohol not defence
(1)
It is not a defence to a prosecution for an
offence under section 24 (1) if the defendant proves that, at the time he or
she was operating the vessel, there was present in the defendant’s
breath or blood a concentration of alcohol of 0.02 grammes or more in 210
litres of breath or 100 millilitres of blood.
(2)
It is not a defence to a prosecution for an
offence under section 24 (2) if the defendant proves that, at the time he or
she was operating the vessel, there was present in the defendant’s
breath or blood a concentration of alcohol of 0.05 grammes or more in 210
litres of breath or 100 millilitres of blood.
(3)
It is not a defence to a prosecution for an
offence under section 24 (3) if the defendant proves that, at the time he or
she was operating the vessel, there was present in the defendant’s
breath or blood a concentration of alcohol of 0.08 grammes or more in 210
litres of breath or 100 millilitres of blood.
(4)
It is not a defence to a prosecution for an
offence under section 24 (4) if the defendant proves that, at the time he or
she was operating the vessel, there was present in the defendant’s
breath or blood a concentration of alcohol of 0.15 grammes or more in 210
litres of breath or 100 millilitres of blood.
27Defence for offence relating
to youth range prescribed concentration of alcohol
It is a defence to a prosecution for an offence
under section 24 (1) if the defendant proves that, at the time the defendant
was operating the vessel, the presence in the defendant’s breath or
blood of the youth range prescribed concentration of alcohol was not caused
(in whole or in part) by any of the following:
(a)
the consumption of an alcoholic beverage
(otherwise than for the purposes of religious observance),
(b)
the consumption or use of any other substance
(for example, food or medicine) for the purpose of consuming
alcohol.
Division 3Offences involving operating a
vessel under the influence of alcohol or other drug
28Operating vessel under
influence of alcohol or other drug
(1)
A person must not operate a vessel in any waters
while under the influence of alcohol or any other drug.
Maximum penalty: 15 penalty
units.
(2)
The master of a vessel must not permit a person
to operate in any waters a vessel in the charge of the master if the master is
aware, or has reasonable cause to believe, that the person is under the
influence of alcohol or any other drug.
Maximum penalty: 15 penalty
units.
(3)
If a person is charged with an offence under this
section:
(a)
the court attendance notice may allege the person
was under the influence of more than one drug and is not liable to be
dismissed on the ground of uncertainty or duplicity if each of those drugs is
described in the court attendance notice, and
(b)
the offence is proved if the court is satisfied
beyond reasonable doubt that the defendant was under the influence of:
(i)
a drug described in the court attendance notice,
or
(ii)
a combination of drugs any one or more of which
was or were described in the court attendance
notice.
Division 4Related
matters
28ACancellation and suspension of
marine safety licences
(1)
If a person is convicted of an offence against
this Part in relation to the operation of a vessel and, at the time the
offence was committed, the person was required by or under this Act to hold a
marine safety licence in order to operate the vessel, the court may, by
order:
(a)
cancel or suspend the licence,
and
(b)
disqualify the convicted person from holding or
obtaining a marine safety licence for a period specified by the
court.
(2)
The holder of a marine safety licence referred to
in subsection (1) who is convicted of an offence under this Part (the
convicted person) is automatically disqualified from holding
or obtaining such a licence for a period of:
(a)
3 months—if during the period of 5 years
before the conviction he or she has not been convicted of any other major
offence, or
(b)
12 months—if during the period of 5 years
before the conviction he or she has been convicted of any other major
offence.
(3)
However, the court before which the person is
convicted may order that the convicted person be disqualified under subsection
(2) for a shorter period specified in the order.
(4)
Any disqualification under this section is in
addition to any penalty imposed for the offence.
28BApplication of section 10 of
Crimes (Sentencing Procedure) Act
1999
(1)
The provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999
do not apply to or in respect of a person who is charged with an alcohol or
drug offence if, at the time of or during the period of 5 years immediately
before the court’s determination in respect of the charge (whether such
period commenced before or after the commencement of this section), the
provisions of that section are or have been applied to or in respect of the
person in respect of a charge for another alcohol or drug offence (whether of
the same or a different kind).
(2)
In this section:
alcohol
or drug offence means an offence under section 24 or 28 or
an offence of aiding, abetting, counselling or procuring the commission of
such an offence.
28CRandom breath testing and
other matters related to alcohol and drug use
Schedule 1 has effect.
[13]Section 29 Types of marine
safety licences
Omit section 29 (c).
[14]Section 29
(g1)
Insert after section 29 (g):
(g1)
certificate of local knowledge—being a
marine safety licence that exempts a vessel whose master is the holder of the
certificate from compulsory pilotage under Part
6,
[15]Section 34 Fees for
licences
Omit the section.
[16]Section 36 Special provision
relating to marine pilot’s licence, marine pilotage exemption
certificate and certificate of local knowledge
Omit “or marine pilotage exemption
certificate”.
Insert instead “, marine pilotage exemption
certificate or certificate of local knowledge”.
[17]Section 37 Regulations
relating to licences
Insert before section 37 (2) (a):
(a1)
requiring a marine safety licence for the
carrying out of any activity, or in relation to any other thing, that may be
regulated under this Act,
[18]Section 37 (2) (k) and
(l)
Omit section 37 (2) (k). Insert instead:
(k)
fees and charges payable in connection with
licences and applications for licences, including in relation to the
inspection of vessels,
(l)
the suspension and cancellation of marine safety
licences, and the disqualification of persons from holding or obtaining marine
safety licences.
[19]Section
38
Omit the section. Insert instead:
38Suspension or cancellation of
licences or disqualification of persons from holding
licences
(1)
The Minister may suspend or cancel a marine
safety licence, or disqualify a person from holding or obtaining a marine
safety licence for a specified period:
(a)
in accordance with section 111,
or
(b)
if the person concerned is not qualified, or is
no longer qualified, to hold the licence, or
(c)
in such other circumstances as may be prescribed
by the regulations.
(2)
The Minister may at any time remove the
suspension of a marine safety licence, or a disqualification, imposed by the
Minister under this section.
[20]Section 42 Rights of
review
Omit section 42 (b). Insert instead:
(b)
the imposition of conditions or any other
limitation or restriction on the person’s marine safety licence
(otherwise than by regulation),
[21]Section 44 Definition of
“unsafe vessel”
Omit “a danger to human
life”.
Insert instead “likely to endanger any
person”.
[22]Section 45 Owner or master not
to operate unsafe vessel
Omit section 45 (1) and (2). Insert
instead:
(1)
The owner of a vessel must not operate the vessel
if the owner knows, or ought reasonably to know, that it is an unsafe
vessel.
Maximum penalty: 400 penalty units or 2 years
imprisonment, or both.
(2)
The master of a vessel must not operate a vessel
if the master knows, or ought reasonably to know, that it is an unsafe
vessel.
Maximum penalty: 400 penalty units or 2 years
imprisonment, or both.
[23]Section 50 Vessels exempt from
registration
Insert “, a commercial vessel that is an
Australian fishing vessel or a pleasure craft” after “recreational
vessel” in section 50 (1).
[24]Section 51 Offence to operate
unregistered vessel
Omit “50 penalty units”. Insert
instead “75 penalty units”.
[25]Part 5, Division 3,
heading
Insert “and other
requirements” after
“certificates”.
[26]Sections 53 and
53A
Omit section 53. Insert instead:
53Vessels to which this Division
applies
(1)
This Division applies to commercial vessels
operating in State waters.
(2)
This Division extends to:
(a)
a commercial vessel that is an Australian fishing
vessel or a pleasure craft while it is operating outside State waters,
and
(b)
any other commercial vessel while it is operating
outside State waters but only if it is proceeding on a voyage that is not an
overseas or interstate voyage.
53AOffence to operate commercial
vessel not complying with certain requirements
(1)
The owner of a commercial vessel must not operate
the vessel unless:
(a)
the vessel complies with the requirements
prescribed by the regulations relating to the design, construction or
equipment of any such vessel, and
(b)
if required by the regulations, has a survey
certificate under this Act.
Maximum penalty: 100 penalty
units.
(2)
The master of a commercial vessel must not
operate the vessel unless:
(a)
the vessel complies with the requirements
prescribed by the regulations relating to the design, construction or
equipment of any such vessel, and
(b)
if required by the regulations, has a survey
certificate under this Act.
Maximum penalty: 100 penalty
units.
(3)
It is a defence to a prosecution under subsection
(2) if the master establishes that he or she did not have any reasonable cause
to believe that:
(a)
the vessel did not comply with the requirements
referred to in subsection (2) (a) or did not have a survey certificate under
this Act, as the case may be, or
(b)
any condition of an exemption granted in respect
of the vessel for the purposes of this section was not being complied with at
the relevant time.
Note—
Section 139 (4) provides that an exemption
granted by the regulations or by order of the Minister does not apply during
any period that any condition to which the exemption is subject is not
complied with.
(4)
The regulations may exempt any class of vessels
from any of the requirements of subsections (1) and (2).
(5)
The Minister may exempt a vessel from any of the
requirements of subsections (1) and (2) by order in writing given to the owner
or master of the vessel or by a condition of the vessel’s registration
under this Act.
Note—
A survey certificate for a vessel is a marine
safety licence—Part 4 deals with the grant of, and other matters
relating to, any such licence. A contravention of the conditions of such a
licence by the holder is an offence—see section
32.
[27]Section 54 Grant of survey
certificate and survey schedule for commercial vessels
Omit “and that the vessel is safe to
operate” from section 54 (1).
[28]Section 54
(2)
Omit the subsection.
[29]Section 55 Accredited
surveyors of commercial vessels
Omit the section.
[30]Section
56
Omit the section. Insert instead:
56Regulations relating to
commercial vessels—construction, survey and other
matters
The regulations may make provision for or with
respect to the following:
(a)
the construction, design, equipment, deck or load
lines, survey, identification of and inspection of, and any other matter
relating to, commercial vessels to which this Division
applies,
(b)
the manner in which any matter referred to in
paragraph (a) is to be determined,
(c)
applications for determinations or approvals
under this Act in respect of a matter referred to in paragraph (a), and
appeals and reviews of decisions made in respect of such applications
(including enabling a person to apply for a review of any such decision to the
Administrative Decisions Tribunal),
(d)
fees in relation to any such application, appeal
or review.
[31]Section 57 Vessels to which
this Division applies
Omit section 57 (1). Insert instead:
(1)
This Division applies to commercial vessels
operating in State waters.
(1A)
This Division extends to:
(a)
a commercial vessel that is an Australian fishing
vessel or a pleasure craft while it is operating outside State waters,
and
(b)
any other commercial vessel while it is operating
outside State waters but only if it is proceeding on a voyage that is not an
overseas or interstate voyage.
[32]Section
59A
Insert after section 59:
59AOffences committed by
disqualified holders of certificates of competency
(1)
A person who is disqualified by or under any Act
from holding or obtaining a certificate of competency must not:
(a)
operate a commercial vessel to which this
Division applies during the period of disqualification, or
(b)
make an application for a certificate of
competency during the period of disqualification and in respect of the
application state his or her name falsely or incorrectly or omit to mention
the disqualification.
Maximum penalty: 100 penalty units or
imprisonment for 18 months or both (in the case of a first offence) or 125
penalty units or imprisonment for 2 years or both (in the case of a second or
subsequent offence).
(2)
Subsection (1) does not apply to the operation of
a vessel in circumstances prescribed by the regulations.
(3)
An offence under this section is a second or
subsequent offence for the purposes of this section if it is the second or
subsequent occasion on which the person is convicted of any offence under
subsection (1) within the period of 5 years immediately before the person is
convicted of the offence.
(4)
If a person is convicted by a court of an offence
under subsection (1), the person:
(a)
is disqualified by the conviction (and without
any specific order) for the relevant disqualification period from the date of
expiration of the existing disqualification or suspension or from the date of
such conviction, whichever is the later, from holding a certificate of
competency, and
(b)
may also be disqualified, for such additional
period as the court may order, from holding a certificate of
competency.
(5)
The disqualification referred to in subsection
(4) is in addition to any penalty imposed for the
offence.
(6)
Subsection (1) applies to a person who is
disqualified from holding a certificate of competency by a court in Australia
or under any law in this State or another State or
Territory.
(7)
In this section, the relevant
disqualification period is:
(a)
in the case of a first offence under subsection
(1)—12 months, or
(b)
in the case of a second or subsequent offence
under subsection (1)—2 years.
[33]Section
60
Omit the section. Insert instead:
60Crewing of commercial vessels
to which this Division applies
The regulations may make provision for or with
respect to the following:
(a)
the crew to be carried in a commercial vessel to
which this Division applies,
(b)
the manner in which the number and type of crew
to be carried in a commercial vessel to which this Division applies are to be
determined,
(c)
the constitution of safety crewing committees and
the functions to be exercised by such committees,
(d)
applications for determinations or approvals
under this Act relating to the crew to be carried in a commercial vessel to
which this Division applies, and appeals and reviews of decisions made in
respect of such applications (including enabling a person to apply for a
review of any such decision to the Administrative Decisions
Tribunal),
(e)
fees in relation to any such application, appeal
or review,
(f)
the keeping of records in relation to the crew
carried in a commercial vessel to which this Division applies and the
production and inspection of any such records.
[34]Section
63
Omit the section. Insert instead:
63Offence to operate
recreational vessel without appropriate boat driving
licence
A person must not operate a recreational vessel
to which this Division applies as its master unless the person is the holder
of a boat driving licence under this Act of an appropriate type which
authorises the person to operate the vessel.
Maximum penalty: 15 penalty
units.
Note—
A boat driving licence is a marine safety
licence—Part 4 deals with the grant of, and other matters relating to,
any such licence.
[35]Section
63A
Insert after section 63:
63AOffences committed by
disqualified holders of boat driving licences
(1)
A person who is disqualified by or under any Act
from holding or obtaining a boat driving licence under this Act must
not:
(a)
operate a recreational vessel to which this
Division applies as its master during the period of disqualification,
or
(b)
make an application for a boat driving licence
under this Act during the period of disqualification and in respect of the
application state his or her name falsely or incorrectly or omit to mention
the disqualification.
Maximum penalty: 100 penalty units or
imprisonment for 18 months or both (in the case of a first offence) or 125
penalty units or imprisonment for 2 years or both (in the case of a second or
subsequent offence).
(2)
Subsection (1) does not apply to the operation of
a vessel in circumstances prescribed by the regulations.
(3)
An offence under this section is a second or
subsequent offence for the purposes of this section if it is the second or
subsequent occasion on which the person is convicted of any offence under
subsection (1) within the period of 5 years immediately before the person is
convicted of the offence.
(4)
If a person is convicted by a court of an offence
under subsection (1), the person:
(a)
is disqualified by the conviction (and without
any specific order) for the relevant disqualification period from the date of
expiration of the existing disqualification or suspension or from the date of
such conviction, whichever is the later, from holding a boat driving licence
under this Act, and
(b)
may also be disqualified, for such additional
period as the court may order, from holding a boat driving licence under this
Act.
(5)
The disqualification referred to in subsection
(4) is in addition to any penalty imposed for the
offence.
(6)
Subsection (1) applies to a person who is
disqualified from holding a boat driving licence by a court in Australia or
under any law in this State or another State or
Territory.
(7)
In this section, the relevant
disqualification period is:
(a)
in the case of a first offence under subsection
(1)—12 months, or
(b)
in the case of a second or subsequent offence
under subsection (1)—2 years.
[36]Section 64 Exemption from
requirement to hold boat driving licence
Omit section 64 (1) (c). Insert instead:
(c)
is authorised under the law of another State or a
Territory to operate the vessel concerned (being an authorisation that is not
suspended) and is operating the vessel in accordance with the conditions of
that authorisation.
[37]Section 64
(1A)
Insert after section 64 (1):
(1A)
Subsection (1) does not exempt a person from the
requirement to hold a boat driving licence if:
(a)
the person holds a boat driving licence that is
suspended, or
(b)
the person has held a boat driving licence that
has been cancelled and the person is disqualified from applying for another
such licence.
[38]Section
67
Omit the section. Insert instead:
67Regulation of marine safety
equipment or facilities
The regulations may make provision for or with
respect to the following:
(a)
the installation or carriage on vessels of marine
safety equipment or facilities,
(b)
the wearing of safety equipment by persons on
vessels or engaged in activities in or over the
water.
[39]Section
68A
Insert after section 68:
68ARegulations relating to
builders plates for vessels
(1)
Regulations may be made for or with respect to
builders plates to be fixed on vessels.
(2)
Without limiting the generality of subsection
(1), the regulations may make provision for or with respect to the
following:
(a)
prohibiting or regulating the sale or supply of
vessels in New South Wales without builders plates,
(b)
the information to be included on builders plates
for vessels, the form of such plates and the manner in which they are to be
fixed to vessels,
(c)
the persons who may fix builders plates to
vessels,
(d)
the alteration and removal of builders
plates.
[40]Section 71
Definitions
Omit the definition of pilotage from section 71 (1). Insert
instead:
pilotage means the conduct of a
vessel by a pilot as follows:
(a)
inward pilotage, that is, the pilotage of a
vessel entering into a pilotage port from the time at which the vessel crosses
the port limit until the vessel is at anchor or made fast to the
shore,
(b)
outward pilotage, that is, the pilotage of a
vessel leaving a pilotage port from the time at which the vessel is no longer
at anchor or made fast to the shore until the vessel is clear of the port
limit,
(c)
harbour pilotage, that is, the pilotage of a
vessel being moved within a pilotage port from the time at which the vessel is
no longer at anchor or made fast to the shore until the vessel is at anchor or
made fast to the shore.
[41]Section 72 Marine pilots in
any port to be licensed
Insert at the end of section 72:
(2)
An unlicensed person does not commit an offence
against subsection (1) if the person is training as a marine pilot and is
acting under the direct supervision of the holder of a marine pilot’s
licence under this Act that applies to the port
concerned.
[42]Section
73
Omit the section. Insert instead:
73Marine pilots in pilotage
ports to be provided by pilotage service provider
A person must not act as the marine pilot of a
vessel in a pilotage port unless:
(a)
in a case where the pilotage service provider is
the Minister, the person has been authorised by the Minister to act as a
marine pilot in that pilotage port, or
(b)
in any other case, the person is employed or
engaged by the pilotage service provider.
Maximum penalty: 100 penalty
units.
[43]Section 74 Pilotage compulsory
in pilotage ports
Insert after section 74 (2):
(2A)
Subsection (2) does not apply to the movement of
a vessel if:
(a)
approval for the movement of the vessel was
obtained from the harbour master for the port concerned before the vessel was
moved, and
(b)
the movement of the vessel was recorded in the
vessel’s log.
[44]Section 75 Vessels exempted
from compulsory pilotage
Insert after section 75 (1) (a):
(a1)
a vessel whose master is the holder of a
certificate of local knowledge under this Act that applies to that port and
vessel,
[45]Section 75
(2)
Insert “or certificate of local
knowledge” after “certificate”.
[46]Section 80 Immunity of State,
marine pilots, pilotage service provider and others
Insert after section 80 (2):
(3)
A reference to a person made available to act as
a marine pilot by a pilotage service provider includes a reference to a person
who is in training as a marine pilot and acting under the direct supervision
of the person made available to act as a marine pilot by the pilotage service
provider.
[47]Section
81A
Insert after section 81:
81AMarine pilot to notify certain
matters to harbour master
It is the duty of a person acting as a marine
pilot for a vessel under this Part to immediately notify the harbour master of
the port concerned if the master of the vessel does not ensure the carrying
out of any order of the person in relation to the conduct of the vessel while
under that pilotage.
[48]Section 83
Regulations
Insert at the end of section 83:
(2)
The regulations relating to pilotage and marine
pilots’ licences may apply, adopt or incorporate by reference wholly or
partly, and with or without modification, any document published by the
Minister in the Gazette or on the website of the Maritime Authority as in
force at a particular time or as in force from time to
time.
[49]Section
85
Omit the section. Insert instead:
85Appointment of harbour
masters
(1)
The Minister may appoint a person to be the
harbour master for any port.
(2)
Two or more persons cannot be appointed as
harbour masters for the same port.
(3)
The Minister may revoke the appointment of a
harbour master at any time.
[50]Section 86 Appointment of
persons to exercise functions of harbour masters
Insert after section 86 (5):
(6)
More than one person may be appointed at any one
time under this section to exercise the functions of a harbour
master.
[51]Section
91A
Insert after section 91:
91ADirections of harbour master
acting as marine pilot
(1)
Nothing prevents a harbour master who is acting
as a marine pilot for a vessel from giving a direction under this Part in
relation to the vessel.
(2)
However, any such direction is taken not to be
properly given under this Part unless the person giving the direction has
warned the person to whom it is given that it is a direction of the harbour
master and that failure to comply with the direction may constitute an offence
under section 91.
[52]Section
97A
Insert after section 97:
97AObstruction of authorised
officers and others
A person must not, without reasonable excuse,
prevent or obstruct any authorised officer or other person in the exercise of
a function under this Act.
Maximum penalty: 50 penalty
units.
[53]Section 111 Action by Minister
following report of investigation
Insert after section 111 (2) (d):
(d1)
disqualify a person from holding or obtaining a
marine safety licence for a specified period,
[54]Section 121 Identification of
owner and master of vessel
Insert after section 121 (2):
(3)
Without limiting subsection (2), an authorised
officer may require the owner of a vessel to supply a written statement
containing the identity and address of the master of the vessel. Any such
written statement is admissible in any proceedings as evidence (without proof
of signature) of the identity and address of the master of the vessel
concerned.
(4)
Without limiting subsection (2), an authorised
officer may require the master of a vessel to supply a written statement
containing the identity and address of the owner of the vessel. Any such
written statement is admissible in any proceedings as evidence (without proof
of signature) of the identity and address of the owner of the vessel
concerned.
[55]Section 125
Offences
Omit section 125 (1).
[56]Part 8, Division 5,
heading
Omit the heading. Insert instead:
Division 5Regulation of public ferry
wharves
[57]Section 125A Public ferry
wharves
Insert at the end of the section:
Note—
The terms ferry and public
passenger service are defined in section 94 (1) to have the
same meanings as they have in the Passenger
Transport Act 1990.
[58]Section 125B Inspections of
public ferry wharves
Omit section 125B (4).
[59]Section 125C Improvement
notices
Insert after section 125C (5):
(6)
An improvement notice may be varied at the
request of, or with the consent of, the person to whom it is
given.
[60]Section 125J Withdrawal and
revocation of notices
Omit “, if satisfied that the notice was
given in error or is incorrect in some respect” from section 125J
(1).
[61]Sections 125L and
125M
Insert after section 125K:
125LCertificates relating to
public ferry wharves
(1)
For the purposes of carrying out functions under
this Division in relation to public ferry wharves, the Minister may, by notice
in writing, direct the owner or person responsible for the maintenance of any
such wharf to provide to the Minister a report from an appropriately qualified
person as to the condition of the wharf within the time specified in the
notice.
(2)
If a person is directed under this section to
provide a report within a specified time and the report is not provided within
that time, the Minister may obtain such a report and may recover from the
person as a debt in any court of competent jurisdiction the reasonable charges
and expenses incurred in obtaining the report.
125MRegulations relating to public
ferry wharves
(1)
The regulations may make provision for or with
respect to any of the following:
(a)
the inspection of public ferry wharves under this
Division,
(b)
the methodology or standards with which
inspections must comply,
(c)
the provision of inspection reports to
persons,
(d)
the procedures with respect to responses to
inspection reports,
(e)
requirements relating to the maintenance and
standards of construction of public ferry wharves,
(f)
requirements relating to the preparation of
maintenance plans for public ferry wharves and the reporting on and keeping of
records in respect of such plans.
(2)
The regulations under this section may apply,
adopt or incorporate by reference wholly or partly, and with or without
modification, any document published by the Minister in the Gazette or on the
website of the Maritime Authority as in force at a particular time or as in
force from time to time.
[62]Section
127
Omit the section. Insert instead:
127Offences
(1)
Proceedings for an offence against this Act or
the regulations are to be disposed of summarily before:
(a)
a Local Court, or
(b)
the Supreme Court in its summary
jurisdiction.
(2)
If proceedings are brought before a Local Court,
the maximum monetary penalty that the Local Court may impose for the offence
is 100 penalty units, despite any higher maximum monetary penalty provided in
respect of the offence.
[63]Section 133 Proof of certain
matters not required
Insert at the end of section 133 (1) (b):
, or
(c)
any such licence that had been suspended or
cancelled has not been delivered to the
Minister,
[64]Section 133 (2)
(c)
Insert “or operator” after
“master”.
[65]Section 133 (2)
(l)
Insert after section 133 (2) (k):
(l)
the times of sunrise and sunset on any day as
published in a statement in a newspaper circulating throughout New South
Wales.
[66]Section 134 Service of
instruments (except in proceedings for offences)
Omit “summons” wherever
occurring.
Insert instead “court attendance
notice”.
[67]Section 135 Service of court
attendance notice and other process in legal proceedings
Omit “summons” wherever
occurring.
Insert instead “court attendance
notice”.
[68]Section
136A
Insert after section 136:
136AMinister or Maritime Authority
may rely on advice
(1)
In exercising any function under this Act or the
regulations, the Minister or the Maritime Authority is entitled to rely
(wholly or partly) on a certificate, report or other form of advice obtained
from an appropriately qualified person engaged for that
purpose.
(2)
The Minister, the State, the Maritime Authority
and any person acting on behalf of the Minister, the State or the Maritime
Authority do not incur any liability as a consequence of the Minister or the
Maritime Authority being satisfied of a matter by relying on advice referred
to in this section.
[69]Section 137
Regulations
Insert after section 137 (1):
(1A)
The regulations may make provision for or with
respect to fees and charges for services provided under this Act, including
prescribing the basis on which any such fee or charge is to be determined and
the waiver of any such fees or charges.
[70]Section 137
(3)
Insert after section 137 (2):
(3)
A regulation that provides for an application to
be made to the Administrative Decisions Tribunal for the review of a decision
may be made only with the concurrence of the Minister administering the
Administrative Decisions Tribunal Act
1997.
[71]Section 138 Adoption of codes,
standards, treaties and other documents
Insert “by whatever means” after
“published” in section 138 (1).
[72]Section 138 (2) and
(3)
Omit section 138 (2). Insert instead:
(2)
Without limiting subsection (1), a regulation may
adopt, wholly or in part and with or without modification any of the following
documents as in force at a particular time or as in force from time to
time:
(a)
the National Standard for Commercial
Vessels adopted by the Australian Transport Council as
referred to in section 427 of the Navigation Act
1912 of the Commonwealth,
(b)
the Uniform Shipping Laws Code adopted by
the Australian Transport Council as referred to in section 427 of the Navigation Act
1912 of the Commonwealth or any other
code,
(c)
any Australian Standard or any standard of
another country,
(d)
any treaty, convention or international
agreement.
(3)
The regulations may prescribe a person or body
who is to be taken to be the statutory marine authority for New South Wales
for the purposes of all or specified provisions of the National Standard for Commercial
Vessels referred to in subsection (2)
(a).
[73]Section 139
Exemptions
Omit section 139 (3). Insert instead:
(3)
An exemption granted by the regulations, by a
licence or approval as referred to in section 18 or by an order of the
Minister or other person may be made subject to any condition specified in the
regulation, licence, approval or order.
[74]Section 139,
note
Insert “18,” after
“11,”.
[75]Section 144 Review of
Act
Omit “this Act” from section 144
(2).
Insert instead “the Marine
Safety Amendment Act 2008”.
[76]Schedule
1
Omit the Schedule. Insert instead:
Schedule 1Alcohol and drug
use—random breath testing and related matters
(Section 28C)
Part 1Interpretation
1Definitions
(1)
In this Schedule:
analyst has the same meaning as in
the Road Transport (Safety and Traffic Management) Act
1999.
breath
analysis has the same meaning as in the Road
Transport (Safety and Traffic Management) Act
1999.
hospital means:
(a)
any public hospital within the meaning of the
Health Services Act 1997 controlled by
an area health service or the Crown, and
(b)
a statutory health corporation or affiliated
health organisation within the meaning of the Health Services
Act 1997, and
(c)
any private hospital within the meaning of the
Private Hospitals and Day Procedure Centres Act
1988.
prescribed laboratory means a
laboratory prescribed by regulations under the Road Transport
(Safety and Traffic Management) Act 1999 for the purposes
of any of the provisions of Part 2 of that Act.
prescribed place means a place
prescribed by regulations under the Road Transport
(Safety and Traffic Management) Act 1999 for the purposes
of any of the provisions of Part 2 of that Act.
prescribed sample taker has the same
meaning as in the Road Transport (Safety and
Traffic Management) Act 1999.
(2)
A reference in this Schedule to a police officer
authorised by the Commissioner of Police to operate breath analysing
instruments includes a reference to a police officer so authorised under the
Road Transport (Safety and Traffic Management) Act
1999.
(3)
For the purposes of this Schedule, a power to
require a person to provide a sample of blood or urine includes a power to
require a person to provide samples of both blood and
urine.
Part 2Random breath testing and
breath analysis
2Power to conduct random breath
testing
(1)
A police officer may require a person to undergo
a breath test in accordance with the officer’s directions if the officer
has reasonable cause to believe that the person is or was operating a
vessel.
(2)
An authorised officer (other than a police
officer) may require a person to undergo a breath test in accordance with the
directions of the officer if the officer has reasonable cause to
believe:
(a)
the person is or was operating a vessel while
there is or was alcohol in the person’s breath or blood,
or
(b)
the person was operating a vessel concerned in an
accident which has resulted in the death of, or injury to, any person,
or
(c)
the person was operating a vessel concerned in an
accident which has resulted in damage to a vessel that affects the
seaworthiness of the vessel or the safety of persons on board the vessel, or
has resulted in damage to other property apparently in excess of $1,000 (or,
if another amount is prescribed by the regulations, the prescribed
amount).
(3)
An authorised officer to whom subclause (2)
applies may only require a person who is or was operating a vessel to undergo
a breath test if there is reasonable cause as referred to in that
subclause.
(4)
A person must not, when required by a police
officer to undergo a breath test under subclause (1) or required by an
authorised officer to undergo a breath test under subclause (2), refuse or
fail to undergo the breath test in accordance with the directions of the
officer.
Maximum penalty: 10 penalty
units.
(5)
It is a defence to a prosecution for an offence
under subclause (4) if the defendant satisfies the court that the defendant
was unable on medical grounds, at the time the defendant was required to do
so, to undergo a breath test.
(6)
Before requiring a person to undergo a breath
test under subclause (1) or (2), and for the purpose of determining whether to
conduct such a test, an authorised officer may conduct a preliminary
assessment to determine if alcohol is present in the person’s breath by
requiring the person to talk into a device that indicates the presence of
alcohol.
3Arrest following failed breath
test
(1)
An authorised officer may exercise the powers
referred to in subclause (2) in respect of a person if:
(a)
it appears to the officer from a breath test
carried out under clause 2 (1) or (2) by the officer that the device by means
of which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of more than zero
grammes in 210 litres of breath or 100 millilitres of blood and the officer
has reasonable cause to believe the person is under 18 years of age,
or
(b)
it appears to the officer from a breath test
carried out under clause 2 (1) or (2) by the officer that the device by means
of which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of not less than
0.02 grammes in 210 litres of breath or 100 millilitres of blood and the
officer has reasonable cause to believe the person is under 18 years of age or
is operating the vessel for commercial purposes, or
(c)
it appears to the officer from a breath test
carried out under clause 2 (1) or (2) by the officer that the device by means
of which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of not less than
0.05 grammes in 210 litres of breath or 100 millilitres of blood,
or
(d)
the person refused to undergo a breath test
required by an authorised officer under clause 2 (1) or (2) or fails to
undergo that test in accordance with the directions of the
officer.
(2)
An authorised officer may:
(a)
arrest a person referred to in subclause (1)
without warrant, and
(b)
take the person, or cause the person to be taken,
with such force as may be necessary, to a police station or some other place
as the officer considers desirable, and
(c)
detain the person, or cause the person to be
detained, at that police station or other place for the purposes of this
Part.
4Breath analysis following
arrest
(1)
An authorised officer may require a person who
has been arrested under clause 3 to submit to a breath analysis in accordance
with the directions of the officer.
(2)
A breath analysis must be carried out by a police
officer authorised to do so by the Commissioner of Police at or near a police
station or such other place as that officer considers
desirable.
(3)
As soon as practicable after a person has
submitted to a breath analysis, the police officer operating the breath
analysing instrument must deliver a written statement to that person signed by
that officer specifying the following:
(a)
the concentration of alcohol determined by the
analysis to be present in that person’s breath or blood and expressed in
grammes of alcohol in 210 litres of breath or 100 millilitres of
blood,
(b)
the day on and time of the day at which the
breath analysis was completed.
(4)
A person who is required by an authorised officer
under subclause (1) to submit to a breath analysis must not refuse or fail to
submit to that analysis in accordance with the directions of the
officer.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(5)
It is a defence to a prosecution for an offence
under this clause if the defendant satisfies the court that the defendant was
unable on medical grounds, at the time the defendant was required to do so, to
submit to a breath analysis.
5Offence—wilfully
altering alcohol concentration following request for breath test or breath
analysis
A person must not wilfully do anything to alter
the concentration of alcohol in the person’s breath or blood:
(a)
between the time of the event referred to in
clause 2 (1) or (2) in respect of which the person has been required by an
authorised officer to undergo a breath test and the time when the person
undergoes that test, or
(b)
if the person is required by an authorised
officer to submit to a breath analysis—between the time of the event
referred to in clause 2 (1) or (2) in respect of which the person has been
required by an authorised officer to undergo a breath test and the time when
the person submits to the breath analysis.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
6When breath test or breath
analysis not permitted
An authorised officer cannot require a person to
undergo a breath test or to submit to a breath analysis:
(a)
if that person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of his
or her treatment has been notified of the intention to make the requisition
and the medical practitioner does not object on the grounds that compliance
with it would be prejudicial to the proper care or treatment of that person,
or
(b)
if it appears to the officer that it would, by
reason of injuries sustained by that person, be dangerous to that
person’s medical condition to undergo a breath test or submit to a
breath analysis, or
(c)
at any time after the expiration of 2 hours from
the occurrence of the event by reason of which an authorised officer was
entitled under clause 2 (1) or (2) to require that person to undergo a breath
test, or
(d)
at that person’s
home.
7Procedure to be followed for
breath analysis
(1)
A person who is required under clause 4 (1) to
submit to a breath analysis may request the authorised officer making the
requisition to arrange for a medical practitioner to take, in the presence of
an authorised officer, a sample of that person’s blood, for analysis in
accordance with this clause at that person’s own
expense.
(2)
A request by a person under subclause (1), or the
taking of a sample of that person’s blood, does not absolve that person
from the obligation imposed on the person to submit to a breath analysis in
accordance with clause 4 (1).
(3)
A medical practitioner by whom a sample of a
person’s blood is taken under an arrangement referred to in subclause
(1) must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s blood,
and
(e)
as soon as reasonably practicable after the
sample is taken, hand the sample to the authorised officer who was present at
the time the sample was taken.
(4)
The authorised officer to whom a sample of blood
is handed under subclause (3) must, as soon as reasonably practicable after
the sample is handed to the officer, arrange for the sample to be submitted to
a prescribed laboratory for analysis by an analyst to determine the
concentration of alcohol in the blood.
(5)
The person from whom the sample was taken may,
within 12 months after the taking of the sample, apply to the prescribed
laboratory for a portion of the sample to be sent, for analysis at that
person’s own expense, to a medical practitioner or laboratory nominated
by the person.
(6)
An analyst at the laboratory to which a sample of
blood is submitted for analysis under this clause may carry out an analysis of
the sample, or of a portion of the sample, to determine the concentration of
alcohol (and, where required, of other drugs) in the
blood.
(7)
An analysis referred to in subclause (6) may be
carried out, and any act, matter or thing in connection with the analysis
(including the receipt of the sample of blood to be analysed and the breaking
of any seal securing the sample) may be done, by a person acting under the
supervision of an analyst, and in that event is taken to have been carried out
or done by the analyst.
Part 3Blood analysis of accident
patients following accidents
8Hospitals to which this Part
applies
In this Part, a reference to a hospital includes a reference to any
premises, institution or establishment prescribed by the regulations under the
Road Transport (Safety and Traffic Management) Act
1999 as a hospital for the purposes of Division 4 of Part
2 of that Act.
9Blood samples to be taken in
hospitals from accident patients
(1)
In this clause, accident
patient means a person at least 15 years of age who attends
at or is admitted into a hospital for examination or treatment because the
person has been involved in an accident while operating a
vessel.
(2)
Any medical practitioner by whom an accident
patient is attended at a hospital is under a duty to take a sample of the
patient’s blood for analysis as soon as
practicable.
(3)
The medical practitioner is under a duty to take
the sample whether or not the accident patient consents to the taking of the
sample.
(4)
If there is no medical practitioner present to
attend the accident patient at the hospital, the blood sample is to be taken
by a registered nurse who is attending the patient and who is accredited by a
hospital as competent to perform the sampling
procedures.
(5)
A medical practitioner or nurse is not required
by this clause to take a sample of an accident patient’s blood:
(a)
if a sample of the accident patient’s blood
has already been taken in accordance with this clause by another medical
practitioner or nurse, or
(b)
if the medical practitioner or nurse has been
informed by a police officer (or has reasonable grounds to believe) that the
sample is required to be taken for the purposes of Part 5 of this
Schedule.
10Offence—failure to take
blood sample
(1)
A medical practitioner or nurse must not fail to
take a person’s blood sample as required under this Part.
Maximum penalty: 20 penalty
units.
(2)
It is a defence to a prosecution for an offence
under subclause (1) if the medical practitioner or nurse satisfies the court
that:
(a)
he or she believed on reasonable grounds that the
taking of blood from the person from whom he or she was required by clause 9
to take a sample of blood would be prejudicial to the proper care and
treatment of the person, or
(b)
he or she did not believe that the person was at
least 15 years of age and it was reasonable for him or her not to have so
believed, or
(c)
he or she did not believe that the person had
attended at or been admitted into the hospital in consequence of an accident
involving a vessel that the person was operating, or
(d)
without limiting paragraph (c)—he or she
did not believe that the person was a person from whom he or she was required
by clause 9 to take a sample of blood and it was reasonable for him or her not
to have so believed, or
(e)
the requirement that he or she take a sample of
blood from the person arose after the expiration of 12 hours after the
accident concerned occurred or he or she believed on reasonable grounds that
the requirement so arose, or
(f)
he or she did not know, and could not with
reasonable diligence have ascertained, which of 2 or more persons involved in
an accident on a vessel was or were a person or persons from whom he or she
was required by clause 9 to take a sample or samples of blood,
or
(g)
he or she was, by reason of the behaviour of the
person, unable to take a sample of blood from the person at the time the
person attended at or was admitted into the hospital or a reasonable time
after so attending or being admitted, or
(h)
there was reasonable cause for him or her not to
take a sample of blood from the person in accordance with this
Part.
11Offence—hindering or
obstructing health professional taking blood sample
(1)
A person must not hinder or obstruct a medical
practitioner or nurse in attempting to take a sample of the blood of any other
person in accordance with this Part.
Maximum penalty: 20 penalty
units.
(2)
A person must not:
(a)
by reason of the person’s behaviour,
prevent a medical practitioner or nurse from taking a sample of the
person’s blood in accordance with this Part, or
(b)
between the time of the accident concerned and
the taking of a sample of the person’s blood in accordance with this
Part, wilfully do anything to alter the concentration of alcohol in the
person’s blood (except at the direction or under the supervision of an
appropriate health professional).
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(3)
It is a defence to a prosecution of a person for
an offence under subclause (2) of wilfully doing anything to alter the
concentration of alcohol in the person’s blood if he or she satisfies
the court that he or she did the thing after the expiration of 2 hours after
the accident concerned occurred.
(4)
In this clause, appropriate health professional
means a medical practitioner or nurse, or a person of a class or description
prescribed by the regulations under this Act or the Road
Transport (Safety and Traffic Management) Act 1999, for
the proper care and treatment of the person.
12Analysis of samples of blood
taken under this Part
(1)
The medical practitioner or nurse by whom a
sample of a person’s blood is taken in accordance with this Part
must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s
blood.
Maximum penalty: 20 penalty
units.
(2)
The medical practitioner or nurse must, as soon
as reasonably practicable after the sample is taken, arrange for the sample to
be submitted to a prescribed laboratory for analysis by an analyst to
determine the concentration of alcohol in the blood.
Maximum penalty: 20 penalty
units.
(3)
The person from whom the sample was taken may,
within 12 months after the taking of the sample, apply to the prescribed
laboratory for a portion of the sample to be sent, for analysis at that
person’s own expense, to a medical practitioner or laboratory nominated
by the person.
(4)
A medical practitioner who, in another State or
Territory, takes a sample of blood:
(a)
from a person attended by the medical
practitioner in consequence of an accident in New South Wales,
and
(b)
in accordance with provisions of a law of that
State or Territory that substantially correspond to the provisions of clause
9,
may arrange for a portion of the sample to be submitted
for an analysis by an analyst to determine the concentration of alcohol in the
blood.
(5)
An authorised officer may arrange for a sample of
a person’s blood taken in accordance with this Part to be submitted to a
prescribed laboratory for analysis to determine the concentration of alcohol,
or of alcohol and other drugs, in the blood.
(6)
An authorised officer may not make arrangements
under subclause (5) for analysis of a blood sample to determine the
concentration in the blood of a drug other than alcohol unless:
(a)
the following circumstances apply:
(i)
the accident that caused the person to attend at
or be admitted to hospital was a fatal accident,
(ii)
the person from whom the sample was taken was
operating a vessel involved in the accident, or
(b)
the following circumstances apply:
(i)
the authorised officer has reasonable grounds to
believe that, at the time of the accident concerned, the person from whom the
sample was taken was under the influence of a drug other than
alcohol,
(ii)
no authorised officer attended the scene of the
accident that led to the taking of the sample or, although an authorised
officer or authorised officers attended the scene of the accident, there was
no reasonable opportunity to require the person from whom the sample was taken
to submit, in accordance with Part 5, to an assessment of his or her
sobriety.
(7)
An analyst to whom a sample of blood, or a
portion of a sample of blood (under subclause (4)), is submitted for analysis
under this clause may carry out an analysis of the sample, or of a portion of
the sample, to determine the concentration of alcohol (and, where required, of
other drugs) in the blood.
(8)
An analysis referred to in subclause (7) may be
carried out, and any act, matter or thing in connection with the analysis
(including the receipt of the sample of blood, or the portion of the sample of
blood, to be analysed and the breaking of any seal securing the sample or
portion) may be done, by a person acting under the supervision of an analyst,
and in that event is taken to have been carried out or done by the
analyst.
13Supervisee may perform
functions of medical practitioner under this Part
(1)
Any duty of a medical practitioner under this
Part and any relevant provisions of the regulations may be performed by a
person acting under the supervision of the medical
practitioner.
(2)
A duty performed by any such person is taken to
have been performed by the medical practitioner.
Part 4Blood and urine analysis of
persons who are not accident patients following fatal
accidents
14Power to arrest persons
involved in fatal accidents for blood and urine tests
(1)
This clause applies to a person who:
(a)
is at least 15 years old, and
(b)
at the time of an accident was operating a vessel
involved in the accident, and
(c)
is not an accident patient within the meaning of
clause 9.
(2)
An authorised officer may exercise the powers
referred to in subclause (3) in relation to a person to whom this clause
applies if the officer believes that:
(a)
the accident is a fatal accident,
or
(b)
it is more likely than not that a person will die
within 30 days as a consequence of the accident.
(3)
An authorised officer may:
(a)
arrest the person without warrant,
and
(b)
take the person (or cause the person to be taken)
with such force as may be necessary to a hospital or prescribed place,
and
(c)
detain the person, or cause the person to be
detained, at the hospital or other prescribed place to enable the person to
provide blood and urine samples in accordance with this
Part.
(4)
In this Part, accident means an accident involving
a vessel.
15Procedure for taking samples
following arrest
(1)
Except as provided by clause 16, an authorised
officer may require a person who has been arrested under clause 14 to provide
samples of the person’s blood and urine (whether or not the person
consents to the samples being taken) in accordance with the directions of a
medical practitioner, registered nurse or prescribed sample
taker.
(2)
The authorised officer must inform any such
medical practitioner, registered nurse or prescribed sample taker that the
samples are required to be taken for the purposes of this
Part.
(3)
The medical practitioner, registered nurse or
prescribed sample taker by whom or under whose directions a sample of blood is
taken in accordance with this Part must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s
blood.
(4)
The medical practitioner, registered nurse or
prescribed sample taker must, as soon as reasonably practicable after the
sample of blood is taken, arrange for the sample to be submitted to a
prescribed laboratory for analysis by an analyst to determine whether the
blood contains a drug.
(5)
The person from whom the sample of blood was
taken may, within 12 months after the taking of the sample, apply to the
prescribed laboratory for a portion of the sample to be sent, for analysis at
that person’s own expense, to a medical practitioner or laboratory
nominated by the person.
(6)
The medical practitioner, registered nurse or
prescribed sample taker under whose directions a sample of urine is provided
in accordance with this Part must:
(a)
divide the sample into 2 approximately equal
portions, and
(b)
place each portion into a container,
and
(c)
fasten and seal each container,
and
(d)
mark or label each container for future
identification.
(7)
Of the 2 sealed containers:
(a)
one must be handed by the medical practitioner,
registered nurse or prescribed sample taker to the person from whom it was
taken or to some other person on behalf of that person,
and
(b)
the other must be handed by the practitioner,
nurse or prescribed sample taker to the authorised officer present when the
sample was taken and forwarded to a prescribed laboratory for analysis by an
analyst to determine whether the urine contains a
drug.
(8)
An analyst at a prescribed laboratory to whom any
blood or urine is submitted for analysis under this clause may carry out an
analysis of the blood or urine to determine whether it contains a drug, but
only if an authorised officer has notified the analyst in writing that a
person involved in the accident that led to the sample of blood or urine being
submitted for analysis:
(a)
has died within 30 days of the accident,
or
(b)
has died during the period beginning 30 days
after the accident and ending 12 months after the accident and a medical
practitioner has given advice that the person died as a result of the
accident.
(9)
Any duty of a medical practitioner, registered
nurse or prescribed sample taker under this Part and any relevant provisions
of the regulations may be performed by a person acting under the supervision
of the practitioner, nurse or prescribed sample taker. A duty performed by any
such person is taken to have been performed by the medical practitioner,
registered nurse or prescribed sample taker.
(10)
An analysis under this clause may be carried out,
and anything in connection with the analysis (including the receipt of the
blood or urine to be analysed and the breaking of any seal) may be done, by a
person acting under the supervision of an analyst and, in that event, is taken
to have been carried out or done by the analyst.
(11)
A blood or urine sample that has been provided
under this clause must be destroyed by or at the direction of the analyst who
has custody of the sample without being analysed if, at the expiry of 13
months after the accident concerned, no authorised officer has made a
notification relating to a death under subclause (8).
16When taking of samples not
permitted
An authorised officer cannot require a person to
provide a sample under this Part:
(a)
if a medical practitioner, registered nurse or
prescribed sample taker has objected on the grounds that compliance would be
dangerous to the person’s health, or
(b)
if it appears to that officer that it would,
because of any injuries to the person, be dangerous to the person’s
medical condition to provide the sample, or
(c)
at any time after the expiration of 4 hours from
the occurrence of the accident concerned.
17Offences related to testing
for drugs
(1)
A person must not:
(a)
on being required under this Part by an
authorised officer to provide samples of blood and urine:
(i)
refuse or fail to submit to the taking of the
sample of blood, or
(ii)
refuse or fail to provide the sample of
urine,
in accordance with the directions of a medical
practitioner, registered nurse or prescribed sample taker,
or
(b)
between the time of the fatal accident concerned
and the time when the person provides a sample that the person is required to
provide under this Part, wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine (except at the
direction or under the supervision of an appropriate health
professional).
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(2)
It is a defence to a prosecution for an offence
under subclause (1) (a) if the defendant satisfies the court that the
defendant was unable, on medical grounds, to provide a sample when the
defendant was required to do so.
(3)
It is a defence to a prosecution of a person for
an offence under subclause (1) (b) of wilfully doing anything to introduce, or
alter the amount of, a drug in the person’s blood or urine if the person
satisfies the court that the thing was done more than 4 hours after the time
of the fatal accident concerned.
(4)
If a medical practitioner, registered nurse or
prescribed sample taker is informed by an authorised officer in accordance
with this Part that a sample is required to be taken for the purposes of this
Part, the medical practitioner, registered nurse or prescribed sample taker
must not:
(a)
fail to take the sample, or
(b)
fail to comply with any requirement made by
clause 15 (3), (4), (6) or (7) in relation to the
sample.
Maximum penalty: 20 penalty
units.
(5)
It is a defence to a prosecution for an offence
under subclause (4) if the medical practitioner, registered nurse or
prescribed sample taker satisfies the court that:
(a)
the practitioner, nurse or prescribed sample
taker believed on reasonable grounds that the taking of the sample from the
person would be prejudicial to the proper care and treatment of the person,
or
(b)
the practitioner, nurse or prescribed sample
taker believed on reasonable grounds that the person was less than 15 years of
age, or
(c)
the practitioner, nurse or prescribed sample
taker was, because of the behaviour of the person, unable to take the sample,
or
(d)
there was other reasonable cause for the
practitioner, nurse or prescribed sample taker not to take the
sample.
(6)
A person must not hinder or obstruct a medical
practitioner, registered nurse or prescribed sample taker in attempting to
take a sample of the blood or urine of any other person in accordance with
this Part.
Maximum penalty: 20 penalty
units.
Part 5Sobriety assessments and
related drug analysis
18Authorised officer may require
sobriety assessment
(1)
An authorised officer may require a person to
submit to an assessment of his or her sobriety in accordance with the
directions of the officer if:
(a)
the person has undergone a breath test in
accordance with Part 2 of this Schedule, and
(b)
the result of the test does not permit the person
to be required to submit to a breath analysis.
(2)
A person cannot be required to submit to a
sobriety assessment unless:
(a)
an authorised officer has a reasonable belief
that, by the way in which the person is or was operating a vessel the person
may be under the influence of a drug, and
(b)
the assessment is carried out by an authorised
officer at or near the place where the person underwent the breath
test.
19Arrest following failure to
submit to (or pass) sobriety assessment
If the person refuses to submit to a sobriety
assessment under this Part or, after the assessment has been made, an
authorised officer has a reasonable belief that the person is under the
influence of a drug, the officer may:
(a)
arrest that person without warrant,
and
(b)
take the person (or cause the person to be taken)
with such force as may be necessary to a hospital or a prescribed place and
there detain the person (or cause the person to be detained) for the purposes
of this Part.
20Procedure for taking samples
following arrest
(1)
Except as provided by clause 21, an authorised
officer may require a person who has been arrested under clause 19 to provide
samples of the person’s blood and urine (whether or not the person
consents to them being taken) in accordance with the directions of a medical
practitioner, registered nurse or prescribed sample
taker.
(2)
The authorised officer must inform any such
medical practitioner, registered nurse or prescribed sample taker that the
samples are required to be taken for the purposes of this
Part.
(3)
The medical practitioner, registered nurse or
prescribed sample taker by whom or under whose directions a sample of blood is
taken in accordance with this Part must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s
blood.
Maximum penalty: 20 penalty
units.
(4)
The medical practitioner, registered nurse or
prescribed sample taker must, as soon as reasonably practicable after the
sample of blood is taken, arrange for the sample to be submitted to a
prescribed laboratory for analysis by an analyst to determine whether the
blood contains a drug.
Maximum penalty: 20 penalty
units.
(5)
The person from whom the sample of blood was
taken may, within 12 months after the taking of the sample, apply to the
prescribed laboratory for a portion of the sample to be sent, for analysis at
that person’s own expense, to a medical practitioner or laboratory
nominated by the person.
(6)
The medical practitioner, registered nurse or
prescribed sample taker by whom or under whose directions a sample of urine is
taken in accordance with this Part must:
(a)
divide the sample into 2 approximately equal
portions, and
(b)
place each portion into a container,
and
(c)
fasten and seal each container,
and
(d)
mark or label each container for future
identification.
(7)
Of the 2 sealed containers:
(a)
one must be handed by the medical practitioner,
registered nurse or prescribed sample taker to the person from whom it was
taken or to some other person on behalf of that person,
and
(b)
the other must be handed by the practitioner,
nurse or prescribed sample taker to the authorised officer present when the
sample was taken and forwarded to a prescribed laboratory for analysis by an
analyst to determine whether the urine contains a
drug.
(8)
An analyst at a prescribed laboratory to whom any
blood or urine is submitted for analysis under this clause may carry out an
analysis of the blood or urine to determine whether it contains a
drug.
(9)
Any duty of a medical practitioner, registered
nurse or prescribed sample taker under this Part and any relevant provisions
of the regulations may be performed by a person acting under the supervision
of the medical practitioner, registered nurse or prescribed sample taker. A
duty performed by any such person is taken to have been performed by the
medical practitioner, registered nurse or prescribed sample
taker.
(10)
An analysis under this clause may be carried out,
and anything in connection with the analysis (including the receipt of the
blood or urine to be analysed and the breaking of any seal) may be done, by a
person acting under the supervision of an analyst and, in that event, is taken
to have been carried out or done by the analyst.
21When sobriety assessment and
taking of samples not permitted
An authorised officer cannot require a person to
submit to a sobriety assessment or to provide a sample under this Part:
(a)
if the person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of the
person’s treatment has been notified of the intention to make the
requirement and the medical practitioner does not object on the grounds that
compliance would be prejudicial to the proper care and treatment of the
person, or
(b)
if it appears to that officer that it would,
because of the person’s injuries, be dangerous to the person’s
medical condition to submit to the assessment or provide the sample,
or
(c)
at any time after the expiration of 4 hours from
the occurrence of the event referred to in clause 18 (2) (a) because of which
the officer was entitled to require the person to submit to the assessment or
provide the sample, or
(d)
at the person’s
home.
22Offences related to sobriety
assessments and testing for drugs
(1)
A person must not, when required by an authorised
officer to submit to an assessment under clause 18, refuse or fail to submit
to the assessment in accordance with the directions of the
officer.
Maximum penalty: 10 penalty
units.
(2)
A person must not:
(a)
on being required under this Part by an
authorised officer to provide samples of blood or urine:
(i)
refuse or fail to submit to the taking of the
sample of blood, or
(ii)
refuse or fail to provide the sample of
urine,
in accordance with the directions of a medical
practitioner, registered nurse or prescribed sample taker,
or
(b)
wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine between the time of the
event referred to in clause 18 (2) (a) in respect of which the person has been
required by an authorised officer to submit to an assessment and the time when
the person undergoes that assessment, or
(c)
wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine between the time of the
event referred to in clause 18 (2) (a) in respect of which the person has been
required by an authorised officer to submit to an assessment and the time when
the person provides a sample that the person is required to provide under this
Part.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(3)
It is a defence to a prosecution for an offence
under subclause (1) or (2) (a) if the defendant satisfies the court that the
defendant was unable on medical grounds, when the defendant was required to do
so, to submit to an assessment or to provide a sample.
(4)
It is a defence to a prosecution of a person for
an offence under subclause (2) (b) of wilfully doing anything to introduce, or
alter the amount of, a drug in the person’s blood or urine if the person
satisfies the court that the thing was done more than 4 hours after the time
of the event referred to in clause 18 (2) (a).
(5)
If a medical practitioner, registered nurse or
prescribed sample taker is informed by an authorised officer in accordance
with this Part that a sample is required to be taken for the purposes of this
Part, the medical practitioner, registered nurse or prescribed sample taker
must not:
(a)
fail to take the sample, or
(b)
fail to comply with any requirement made by
clause 20 (3) or (4) in relation to the sample.
Maximum penalty: 20 penalty
units.
(6)
It is a defence to a prosecution for an offence
under subclause (5) if the medical practitioner, registered nurse or
prescribed sample taker satisfies the court that:
(a)
the practitioner, nurse or prescribed sample
taker believed on reasonable grounds that the taking of the sample from the
person would be prejudicial to the proper care and treatment of the person,
or
(b)
the practitioner, nurse or prescribed sample
taker did not believe that the person was of or above the age of 15 years and
it was reasonable for the practitioner, nurse or prescribed sample taker not
to have so believed, or
(c)
the practitioner, nurse or prescribed sample
taker was, because of the behaviour of the person, unable to take the sample,
or
(d)
there was other reasonable cause for the
practitioner, nurse or prescribed sample taker not to take the
sample.
(7)
A person must not hinder or obstruct a medical
practitioner, registered nurse or prescribed sample taker in attempting to
take a sample of the blood or urine of any other person in accordance with
this Part.
Maximum penalty: 20 penalty
units.
Part 6Powers of authorised
officers
23Powers of authorised
officers
(1)
An authorised officer may, for the purposes of
Part 3 of this Act and this Schedule, exercise the following powers:
(a)
direct or signal a person who is operating a
vessel to manoeuvre the vessel in a specified manner or to a specified
place,
(b)
direct or signal a person to stop the vessel and
secure it in a specified manner,
(c)
board a vessel for the purpose of investigating
an offence the authorised officer reasonably suspects to have been committed
while the vessel was underway,
(d)
require any person whom the authorised officer
reasonably suspects of having committed an offence against this Schedule or
the regulations or who, in the opinion of the authorised officer, is in a
position to give evidence relating to the commission of an offence, to state
his or her full name and residential address.
(2)
A person who:
(a)
fails or refuses to comply with a requirement
under this clause, or
(b)
hinders an authorised officer acting in the
exercise of the officer’s powers under this clause,
or
(c)
when required to state his or her name and
residential address, states a false name or
address,
is guilty of an offence.
Maximum penalty: 10 penalty
units.
(3)
A person is not guilty of an offence of failing
or refusing to comply with a requirement under subclause (1) (c) or (d) unless
it is established that the authorised officer:
(a)
warned the person that a failure or refusal to
comply with the requirement is an offence, and
(b)
identified himself or herself as an authorised
officer.
24Identification of
offender
(1)
If a person is reasonably suspected by an
authorised officer to have committed an offence against Part 3 of this Act, or
this Schedule, the owner of the vessel concerned or person in charge of the
vessel at the time of the alleged offence may be required to give information
as to the full name and residential address of the person suspected of
committing the offence and any other person may be required to give any
information that may lead to the identification of the
person.
(2)
The owner or person in charge may be required to
give the information in the form of a written statement signed by the owner or
person in charge.
(3)
A person who fails to comply with a requirement
under this clause is guilty of an offence.
Maximum penalty: 10 penalty
units.
(4)
A person is not guilty of an offence under this
clause if it is established that the person did not know and could not with
reasonable diligence have established the name and address of the
person.
(5)
A written statement purporting to be furnished
under this clause and to contain particulars of the name and residential
address of a person at the time of commission of an alleged offence against
Part 3 of this Act or this Schedule is evidence in proceedings against the
person that he or she was the operator of the vessel at the time of commission
of the alleged offence without proof of signature if the person does not
appear before the court.
25Detention of vessel in certain
cases
(1)
An authorised officer may take charge of and
remove any vessel in respect of which an offence under Division 2 or 3 of Part
3 has been committed to any convenient place for safe
keeping.
(2)
The court adjudicating may, if it is of the
opinion that there was reasonable cause for any such taking charge, removal
and safe keeping, order the costs, charges and expenses of it to be paid by
the offender.
Part 7Evidentiary and other
procedural matters
26Evidence of alcohol
concentration revealed by breath or blood analysis in proceedings for offence
under section 24
(1)
In proceedings for an offence under section 24,
evidence may be given of the concentration of alcohol present in the breath or
blood of the person charged as determined by:
(a)
a breath analysing instrument operated by a
police officer authorised to do so by the Commissioner of Police,
or
(b)
an analysis of the person’s blood under
this Schedule.
(2)
In proceedings for an offence under section 24,
the concentration of alcohol so determined is taken to be the concentration of
alcohol in the person’s breath or blood at the time of the occurrence of
the relevant event referred to in clause 2 (1) or (2) if the breath analysis
was made, or blood sample taken, within 2 hours after the event unless the
defendant proves that the concentration of alcohol in the defendant’s
breath or blood at the time concerned was:
(a)
in the case of an offence under section 24
(1)—zero grammes of alcohol in 210 litres of breath or 100 millilitres
of blood, or
(b)
in the case of an offence under section 24
(2)—less than 0.02 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(c)
in the case of an offence under section 24
(3)—less than 0.05 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(d)
in the case of an offence under section 24
(4)—less than 0.08 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(e)
in the case of an offence under section 24
(5)—less than 0.15 grammes of alcohol in 210 litres of breath or 100
millilitres of blood.
(3)
Nothing in subclause (2) affects the operation of
section 25.
27Certificate evidence about
breath or blood analysis in proceedings for offences under section
24
(1)
In proceedings for an offence under section 24 a
certificate purporting to be signed by a police officer certifying
that:
(a)
the officer is authorised by the Commissioner of
Police to operate breath analysing instruments, and
(b)
a person named in the certificate submitted to a
breath analysis, and
(c)
the apparatus used by the officer to make the
breath analysis was a breath analysing instrument within the meaning of this
Act, and
(d)
the analysis was made on the day and completed at
the time stated in the certificate, and
(e)
a concentration of alcohol determined by that
breath analysing instrument and expressed in grammes of alcohol in 210 litres
of breath or 100 millilitres of blood was present in the breath or blood of
that person on the day and at the time stated in the certificate,
and
(f)
a statement in writing required by clause 4 (3)
was delivered in accordance with that subclause,
is admissible and is prima facie evidence of the
particulars certified in and by the certificate.
(2)
In proceedings for an offence under section 24 or
Part 2 of this Schedule a certificate purporting to be signed by the
Commissioner of Police that the police officer named in the certificate is
authorised by the Commissioner of Police to operate breath analysing
instruments is admissible and is prima facie evidence of the particulars
certified in and by the certificate.
(3)
In proceedings for an offence under section 24 or
Part 2 of this Schedule, evidence of the condition of a breath analysing
instrument, or of the manner in which it was operated, is not required unless
evidence sufficient to raise doubt that the instrument was in proper condition
and properly operated has been adduced.
(4)
In proceedings for an offence under section 24, a
certificate purporting to be signed by a medical practitioner or nurse
certifying any one or more of the following matters is admissible and is prima
facie evidence of the particulars certified in and by the certificate:
(a)
that he or she was a medical practitioner or
nurse who attended a specified person who attended at or was admitted into a
hospital as referred to in clause 9,
(b)
that he or she took a sample of the
person’s blood in accordance with Part 3 of this Schedule, and any
relevant provisions of the regulations, on the day and at the time stated in
the certificate,
(c)
that he or she dealt with the sample in
accordance with clause 12 (1) and any relevant provisions of the
regulations,
(d)
that he or she used equipment of a specified
description in so taking and dealing with the sample,
(e)
that the container was sealed, and marked or
labelled, in a specified manner.
(5)
In proceedings for an offence under section 24, a
certificate purporting to be signed by a police officer certifying any one or
more of the following matters is admissible and is prima facie evidence of the
particulars certified in and by the certificate:
(a)
that the officer received a sample of a specified
person’s blood taken in accordance with Part 3 of this
Schedule,
(b)
that the officer arranged for the sample to be
submitted for analysis by an analyst to determine the concentration of alcohol
in the blood,
(c)
that the container was sealed, and marked or
labelled, in a specified manner.
(6)
In proceedings for an offence under section 24, a
certificate purporting to be signed by an analyst certifying any one or more
of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s blood in a container submitted for
analysis under this Schedule,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
sample to determine the concentration of alcohol in the
sample,
(e)
that the concentration of alcohol determined
pursuant to the analysis and expressed in grammes of alcohol in 100
millilitres of blood was present in that sample,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Schedule,
is admissible and is prima facie evidence:
(g)
of the particulars certified in and by the
certificate, and
(h)
that the sample was a sample of the blood of that
specified person, and
(i)
that the sample had not been tampered with before
it was received by the analyst.
(7)
In proceedings for an offence under section 24, a
certificate purporting to be signed by a person who, in another State or
Territory:
(a)
took a blood sample, or
(b)
analysed a blood
sample,
in accordance with provisions of a law of that State or
Territory that substantially correspond to the provisions of Part 3 of this
Schedule is admissible and is prima facie evidence of the particulars
certified in and by the certificate, and an analysis to which any such
certificate relates is taken to be an analysis under that
Part.
28Evidence of drugs revealed by
blood or urine analysis in proceedings for offence under section
28
In proceedings for an offence under section 28
(1):
(a)
evidence may be given of:
(i)
the presence of a drug, or
(ii)
the presence of a particular concentration of a
drug,
in the blood or urine of the person charged, as
determined pursuant to an analysis under Part 3, 4 or 5 of this Schedule of a
sample of the person’s blood or urine, and
(b)
the drug the presence of which is so determined
or the particular concentration of the drug the presence of which is so
determined, as the case may be, is to be taken to have been present in the
blood or urine of that person when the event referred to in section 28 (1)
occurred,
if the sample was taken within 4 hours after the event,
unless the defendant proves the absence of the drug, or the presence of the
drug in a different concentration, when the event
occurred.
29Certificate evidence about
blood or urine analysis in proceedings for offences under section
28
(1)
In proceedings for an offence under section 28
(1), a certificate purporting to be signed by a medical practitioner, nurse or
prescribed sample taker certifying any one or more of the following matters is
admissible and is prima facie evidence of the particulars certified in and by
the certificate:
(a)
that the medical practitioner, nurse or
prescribed sample taker was a medical practitioner, nurse or prescribed sample
taker who attended a specified person who attended at or was admitted into a
hospital or a prescribed place as referred to in Part 3, 4 or 5 of this
Schedule,
(b)
that the medical practitioner, nurse or
prescribed sample taker took a sample of the person’s blood or urine in
accordance with Part 3, 4 or 5 of this Schedule and any relevant provisions of
the regulations, on the day and at the time stated in the
certificate,
(c)
that the medical practitioner, nurse or
prescribed sample taker dealt with the sample in accordance with Part 3, 4 or
5 of this Schedule and any relevant provisions of the
regulations,
(d)
that the container was sealed, and marked or
labelled, in a specified manner.
(2)
In proceedings for an offence under section 28
(1), a certificate purporting to be signed by a police officer certifying any
one or more of the following matters is admissible and is prima facie evidence
of the particulars certified in and by the certificate:
(a)
that the officer received a sample of a specified
person’s blood or urine taken in accordance with Part 3, 4 or 5 of this
Schedule,
(b)
that the officer arranged for the sample to be
submitted for analysis by an analyst to determine whether any drug was present
in the sample,
(c)
that the container was sealed, and marked or
labelled, in a specified manner.
(3)
In proceedings for an offence under section 28
(1), a certificate purporting to be signed by an analyst certifying any one or
more of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s blood or urine in a container submitted
for analysis under Part 3, 4 or 5 of this Schedule,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
sample to determine whether any drug was present in the
sample,
(e)
that a specified drug ascertained pursuant to the
analysis was present in that sample and, if so certified, was present in that
sample in a specified concentration,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Schedule,
is admissible and is prima facie evidence:
(g)
of the particulars certified in and by the
certificate, and
(h)
that the sample was a sample of the blood or
urine of that specified person, and
(i)
that the sample had not been tampered with before
it was received by the analyst.
(4)
Subclauses (1)–(3):
(a)
do not apply to proceedings brought on a charge
that, by the operation of clause 32 (4), cannot be laid,
and
(b)
do not enable evidence to be given of or in
relation to:
(i)
the presence of a drug other than alcohol,
or
(ii)
the presence of a particular concentration of a
drug other than alcohol,
in the blood of a person charged with an offence under
section 28 (1), as determined by an analysis under Part 3 of this Schedule,
unless the court is satisfied that the analysis was not arranged in
contravention of clause 12 (6).
30Certificate evidence may
specify minimum concentrations
If, in any proceedings in which evidence is
permitted to be given of the results of an analysis, undertaken for the
purposes of this Act, of a sample of a person’s blood or urine, evidence
is given by a certificate under this Act to the effect that alcohol or another
specified drug was found by the analysis to be present in the sample in a
concentration not less than a specified concentration:
(a)
the certificate is to be treated as though it
stated that the concentration of alcohol or of the other drug concerned was
determined by the analysis to be present in the specified minimum
concentration, and
(b)
the evidence given by the certificate is not open
to challenge on the basis that the analysis, merely because it purports to
determine a concentration in terms of a minimum, does not meet the
requirements of this Act.
31Evidence of breath test,
breath analysis or blood or urine analysis and related facts not admissible in
insurance cases to prove intoxication or drug use
(1)
For the purposes of any contract of insurance,
any of the following facts are not admissible as evidence of the fact that a
person was at any time under the influence of or in any way affected by
intoxicating liquor or incapable of operating or of exercising effective
control over a vessel:
(a)
the fact that a person has undergone a breath
test or submitted to a breath analysis under Part 2 of this
Schedule,
(b)
the result of a breath test or breath
analysis,
(c)
the fact that a person has been convicted of an
offence under section 24 or clause 2 (4), 4 (4) or
5.
(2)
For the purposes of any contract of insurance,
the results of any analysis of blood or urine under Part 3, 4 or 5 of this
Schedule are not admissible as evidence of the fact that a person was at any
time under the influence of or in any way affected by intoxicating liquor or
other drug or incapable of operating or of exercising effective control over a
vessel.
(3)
Nothing in subclause (1) or (2) precludes the
admission of any other evidence to show a fact referred to in the
subclause.
(4)
The provisions of this clause have effect despite
anything contained in any contract of insurance.
(5)
Any covenant, term, condition or provision in any
contract of insurance is void:
(a)
to the extent that the operation of this clause
is excluded, limited, modified or restricted, or
(b)
to the extent that it purports to exclude or
limit the liability of the insurer in the event of any person being convicted
of an offence under section 24 or Part 2 of this
Schedule.
(6)
However, nothing in subclause (5) precludes the
inclusion in a contract of insurance of any other covenant, term, condition or
provision under which the liability of the insurer is excluded or
limited.
32Double jeopardy in relation to
alcohol and other drug offences
(1)
If a person has been convicted of an offence
under clause 4 (4), 5, 17 (1) or (6) or 22 (2), the person is not liable to be
convicted of an offence under section 28 (1) if the offence for which the
person has been convicted and the other offence arose directly or indirectly
out of the same circumstances.
(2)
If a person has been convicted of an offence
under section 28 (1), the person is not liable to be convicted of an offence
under clause 4 (4), 5, 17 (1) or (6) or 22 (2) if the offence for which the
person has been convicted and the other offence arose directly or indirectly
out of the same circumstances.
(3)
If, by reason of the occurrence of an event
referred to in clause 2 (1) or (2), a person is required by an authorised
officer to undergo a breath test and as a consequence of that test to submit
to a breath analysis and the person submits to the breath analysis in
accordance with the directions of an authorised officer, the person cannot be
charged with an offence under section 28 (1) of operating a vessel, at the
time of that event, while the person was under the influence of intoxicating
liquor.
(4)
A person who has had a sample of blood taken in
accordance with Part 3 of this Schedule because of an accident is not to be
charged with an offence under section 28 (1) if it is alleged as a component
of the offence that the person was under the influence of alcohol and the
offence relates to the same accident.
Part 8Miscellaneous
33Personal liability for good
faith taking of samples
(1)
A medical practitioner, nurse or prescribed
sample taker does not incur any civil or criminal liability in respect of
anything properly and necessarily done by the practitioner, nurse or
prescribed sample taker in the course of taking a sample of blood or urine
from a person for the purpose of its being used by an analyst to detect the
presence of any drug if the practitioner, nurse or prescribed sample
taker:
(a)
believed on reasonable grounds that he or she was
required under this Act to take the sample of blood or urine from the person,
or
(b)
believed on reasonable grounds that the person
was involved in an accident on a vessel (whether in New South Wales or
elsewhere) and he or she did not know, and could not with reasonable diligence
have ascertained, whether or not he or she was required to take the sample
from the person under Part 3 or 4 of this Schedule, or
(c)
was informed by an authorised officer that the
person was a person from whom the practitioner, nurse or prescribed sample
taker was required under this Act to take the sample of blood or
urine.
(2)
Subclause (1) extends to any person acting under
the supervision of the medical practitioner, nurse or prescribed sample taker
as referred to in clause 13, 15 (9) or 20 (9).
34Regulations for the purposes
of Part 3 and this Schedule
(1)
Regulations may be made for the purposes of Part
3 and this Schedule.
(2)
Without limiting subclause (1), the regulations
may make provision for or with respect to the following:
(a)
the methods and conditions to be observed by
medical practitioners or nurses in taking samples of blood or urine under this
Schedule,
(b)
the storage of samples so
taken,
(c)
the delivery or transmission of samples so taken
to the persons from whom they are taken, to authorised officers or to
analysts,
(d)
the destruction of samples so
taken.
[77]Schedule 4 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Marine Safety Amendment Act
2008
[78]Schedule 4, clause 1 (4) and
(5)
Insert after clause 1 (3):
(4)
The regulations may make provision for or with
respect to the following:
(a)
providing that a specified provision of this Act
or the regulations has no effect until a specified Act or Regulation referred
to in Schedule 2, or a specified provision of any such Act or Regulation, is
repealed,
(b)
construing all references in this Act or the
regulations, or specified references, to marine safety licences or a
particular type of marine safety licence as meaning, or including a reference
to, a licence, permit or other authorisation, or a particular type of licence,
permit or other authorisation, issued under an Act or Regulation referred to
in Schedule 2.
(5)
For the avoidance of doubt, any provision of the
regulations made for the purposes of this clause may, if the regulations so
provide, have effect despite any specified provision of this Act (including a
provision of this Schedule).
[79]Schedule 4, Part
4
Insert after Part 3:
Part 4Provisions consequent on
enactment of Marine Safety Amendment Act
2008
14Definitions
In this clause:
amending
Act means the Marine Safety
Amendment Act 2008.
15Amendments not to apply to
offences occurring before the commencement of amendments
(1)
Proceedings for offences committed, or alleged to
have been committed, before the substitution of Part 3 and Schedule 1 by the
amending Act are to be determined as if the amendments had not been
enacted.
(2)
Accordingly, the law (including any relevant
provision of this Act) that would have been applicable to the proceedings had
the amendments not been enacted continues to apply to the proceedings as if
the amendments had not been enacted.
16References to and in relation
to marine safety licences in section 28A
(1)
A reference in section 28A to a marine safety
licence is taken to include a reference to a licence to which section 10 of
the Marine (Boating Safety—Alcohol and Drugs) Act
1991 applied immediately before its
repeal.
(2)
A reference in section 28A:
(a)
to the cancellation or suspension of a marine
safety licence is taken to include a reference to the withdrawal of
recognition of a recognised licence (within the meaning of section 10 of the
Marine (Boating Safety—Alcohol and Drugs) Act
1991), and
(b)
to the disqualification of the holder of a marine
safety licence is taken to include a reference to the disqualification of the
person from having a recognised licence recognised.
17Offences relating to
disqualification from holding certain marine safety
licences
Section 59A or 63A (as inserted by the amending
Act):
(a)
applies only to a disqualification occurring
after the commencement of the section, and
(b)
does not apply to any offence committed before
the commencement of the section.
18Appointment of harbour
masters
A harbour master whose appointment as harbour
master was in force immediately before the substitution of section 85 by the
amending Act is taken to have been appointed under section 85 as so
substituted.
Historical
notes
Table of amending
instruments
Marine Safety Amendment Act
2008 No 59. Assented to 1.7.2008. Date of commencement,
Sch 1 [13]–[19] and [23]–[48] excepted, 1.8.2008, sec 2 and GG No
93 of 1.8.2008, p 7349; date of commencement of Sch 1 [13]–[19] and
[23]–[48]: not in force.