38Regulations
(1)
The Governor may make regulations not
inconsistent with this Act or with any other Act with the administration of
which the Board is charged:
(a)
in relation to any authority, duty, function,
obligation or power conferred or imposed on the Board,
(b)
in relation to any land vested in the Board or
any matter or thing over which the Board has control or the general
superintendence,
(c)
prescribing all matters which are required or
permitted to be prescribed, or which are necessary or convenient to be
prescribed, for carrying out or giving effect to this Act, the Sydney Harbour
Trust Act 1900 or the Port Rates Act
1975.
(2)
In particular and without limiting the generality
of the foregoing power the Governor may make regulations for or in relation
to:
(a)
the marking, sorting, stacking, loading,
unloading, delivery and the handling generally of cargo and goods in any port
or on any wharf or on any land vested in the Board or under its control or
management,
(ai)
the removal of such cargo or goods by the owner
thereof, or by the owner of a vessel who has received such cargo or goods for
shipment on that vessel, from such port, wharf or land, the removal by the
Board of any such cargo or goods or any class thereof to any other place
vested in or controlled by the Board, or the depositing of the same by the
Board in any bond or store, the imposition in respect of any cargo or goods or
any class thereof not removed by the owner thereof, or by the owner of a
vessel who has received such cargo or goods for shipment on that vessel, from
any such port, wharf or land within any time or times specified in the
regulations of charges either general in application or specifically applying
to particular classes of cargo or goods, particular wharves or areas or
particular times or calculated by reference to the average dimensions or
weight of any separate portions of any cargo or goods or by reference to such
method as may be prescribed by the regulations, and the recovery by the Board
of the costs and expenses incurred in the removal of any such cargo or goods
and in cleansing or reinstating any wharf or land affected by such cargo or
goods,
(aii)
the imposition, in respect of vessels which enter
or leave any port or ports or which are berthed at any installation or any
class or classes of installations in any port or ports, of passenger rates
calculated by reference to any one or more of the following, namely, the
number of passengers carried, embarked, or disembarked on, on to or from any
such vessel, the voyage or class of voyage made or to be made, the class of
accommodation provided, the passage money charged, or any other circumstances
specified in the regulations,
(b)
controlling and regulating the occupation of
navigable waters by structures or floating objects or apparatus or by vessels
occupying navigable waters for the purpose other than the normal incidents of
a voyage, and the use of moorings,
(c)
notwithstanding anything contained in section 86
of the Sydney Harbour Trust Act 1900, the
prevention, prohibition or regulation, whether by the adoption of standards or
otherwise, of the doing or continuance, in or on any waters or lands vested in
or controlled by the Board or in the vicinity thereof, of anything likely to
cause the pollution of the navigable waters lying within one nautical league
of the coast or the inland navigable waters of New South Wales or the
foreshores or shores of any such navigable waters or inland navigable waters,
or any portion of such navigable waters, inland navigable waters, foreshores
or shores,
(d)
the management, control or development of any
port or wharf or any land vested in the Board or under its control or
management,
(e)
controlling and regulating the use of any portion
of the bed, foreshores, or shores of any port,
(ei)
prohibiting or regulating on, or in connection
with, any vessel, floating object, apparatus or structure in any navigable
waters, the carrying on of any activity or operation, or the installation or
use of any fitting, equipment or machine, which may cause annoyance, nuisance,
injury or danger to any person, damage or risk of damage to any property or
pollution of navigable waters, or which involves the emission of noise, smoke,
dust, cinders, solid particles of any kind, gases, fumes, mist, odours,
radio-activity or radio-active substances,
(eii)
prescribing equipment to be installed to prevent
or limit any emission referred to in paragraph (ei),
(f)
generally controlling and regulating the
navigation, use and equipment of vessels in the navigable waters of New South
Wales and, without limiting the generality of the foregoing:
(i)
the proper, safe, and efficient conduct of
navigation and of maritime and aquatic activities,
(ii)
preventing interference by or in the use of any
vessel with the operation or use of any other vessel,
(iii)
preventing the operation or use of any vessel in
a manner that may cause annoyance, nuisance, injury or danger to any person or
damage or risk of damage to any property, and
(iv)
preventing or limiting the emission from vessels
of noise, smoke, dust, cinders, solid particles of any kind, gases, fumes,
mist, odours, radio-activity or radio-active substances, prescribing the
equipment to be installed in vessels to prevent or limit any such emission,
and preventing or regulating the use, movement or operation of vessels in such
manner as may cause, increase, or render more serious the effect of, any such
emission,
(fi)
the issue by the Board and the use and return to
the Board of special plates for attachment to vessels, the conditions subject
to which any such plates may be issued or used, the fees payable in respect of
any such plates, the exemption of the owner or master of any vessel to which
any such plate is attached from such of the provisions of any Act, by-law,
regulation or rule with the administration of which the Board is charged as
may be specified in the regulations made under this paragraph or in any
conditions subject to which any such plates may be issued or used, and the
imposition of penalties not exceeding 4 penalty units for any breach of any
regulation made under this paragraph or of any condition subject to which any
plate may be used,
(g)
the commencement, carrying-out, completion and
control generally of all work connected with the cutting-down, demolition,
destruction and removal of any vessel or structure in any port and the
imposition of fees in relation to any such work; the removal by any means
whatsoever of derelicts, impediments, obstructions, nuisances, wrecks and the
like,
(h)
the precautionary or safety measures to be taken
and the control generally of all matters relating to the conveying, loading,
unloading, delivery and the handling generally of explosives in any
port,
(i)
the control, regulation and management generally
of all matters relating to vessels in any port and to vehicles of any
description and their drivers on any wharf or on any property vested in the
Board or under its management or control,
(j)
the licensing of porters and prescribing their
duties,
(k)
controlling and regulating the use of any vehicle
or machine of any description operating on any wharf or on any property vested
in the Board or under its management or control,
(l)
the payment of fees to assessors engaged in a
court of marine inquiry,
(m)
the keeping and using, by persons concerned with
the marking, sorting, stacking, loading, unloading, delivery and the handling
generally of cargo or goods in any port or on any wharf or land vested in or
controlled by the Board, of records and forms relating to such operations,
providing for inspection of such records and forms by or on behalf of the
Board, providing for the furnishing of such records and forms, or copies or
extracts thereof, for use in any legal proceedings instituted by the Board or
by its direction,
(n)
prohibiting or regulating on any vessel, or on
any land or in any building vested in or controlled by the Board, the carrying
on of operations involving risk of fire, explosion or other damage to persons
or property or any danger to health, and prohibiting the entry to any port or
place, and in general controlling the movements, of vessels which for any
reason constitute such a risk or danger,
(ni)
the carriage and use by a vessel within a port of
equipment and apparatus for the receipt or despatch of messages or signals or
for the purpose of indicating, by the emission or reflection of signals or
otherwise, the location and movements of such vessel,
(o)
the conduct of persons using or being upon or in
any land, wharf, depot, shed, warehouse or other place vested in or controlled
by the Board, the prevention of the improper use of the same and of
objectionable or dangerous conduct thereon or therein, and the prevention of
damage or injury to any such land, wharf, depot, shed, warehouse or place, or
to any goods, cargo, plant, machinery, vehicles or things, or to other
persons, thereon or therein,
(p)
prohibiting or regulating the presence of, or any
specified activity of, persons:
(i)
in any navigable waters in the vicinity of or
within a prescribed distance of any moored, anchored, sunken or stranded
vessel, or
(ii)
in or on, or on land adjacent to, any navigable
waters or any lands vested in or controlled by the Board, in the vicinity of
or within a prescribed distance of any wharf or installation which is used for
the shipment or unshipment of cargo, any installation used for the
construction, repair or refitting of vessels, any depot, shed, warehouse or
area used for the storage, handling or safe keeping of cargo, goods, vehicles,
plant, equipment or materials, or any site on which construction work is being
carried out by the Board or any public authority,
(q)
subject to subsection (3A), describing the
boundaries of any port or area of water.
(2A)
Without limiting the generality of any other
provision of this section, the power of the Governor to make regulations under
this section includes power to make regulations for or with respect to:
(a)
the erection by the Board of signs and notices
for the purpose of prohibiting or regulating the movement, standing, waiting
or parking of vehicles on any wharf or property vested in the Board or under
its control or management and the imposing of penalties not exceeding 2
penalty units for any failure to comply with any such sign or
notice,
(b)
the installation by the Board of parking meters
on any such wharf or property for the purpose of regulating the standing,
waiting or parking of vehicles in any place on any such wharf or property and
the operation and protection from damage of any parking meters so
installed,
(c)
the demanding, recovery or collection by the
Board of such charges or fees as may be fixed by the Board in respect of any
vehicle standing, waiting or parked in any place on any such wharf or property
where the regulations require the payment of such fees or charges in respect
of vehicles standing, waiting or parked in that place,
(d)
the prohibition or regulation of the entry of
vehicles on to, and the movement of vehicles on, any such wharf or
property,
(e)
the production, by the driver of any vehicle on
any such wharf or property to a member of the police force or a person
appointed by the Secretary of the Board, of any licence required by law to be
held by the driver as the driver of that vehicle,
(f)
the making or display by vessels of prescribed
signals or lights, and the manner of navigation of other vessels when such
signals or lights are made or displayed by a vessel,
(g)
the erection by the Board of signs and notices
for the purpose of prohibiting or regulating the navigation of vessels, or the
use of vessels for a purpose or purposes or otherwise than for a purpose or
purposes stated in such sign or notice, or the mooring or anchoring of
vessels, or of vessels of a specified class or classes, or of vessels other
than vessels of a specified class or classes, stated in such sign or notice,
in any area of navigable waters and the imposing of penalties not exceeding 2
penalty units for any failure to comply with any such sign or
notice,
(h)
the erection by the Board of signs and notices
for the purpose of prohibiting or regulating the presence of persons, or of
persons of a class or classes or of persons other than of a class or classes
stated in any such sign or notice, on or in any land, wharf, building or
structure vested in the Board or under its control or management, or the use
by persons of any such land, wharf, building or structure for a purpose or
purposes or otherwise than for a purpose or purposes stated in such sign or
notice, and the imposing of penalties not exceeding 2 penalty units for any
failure to comply with any such sign or notice,
(i)
the giving by the Board, or a servant of the
Board, of a notice to any person for the purpose of preventing, prohibiting or
regulating, either absolutely or conditionally, the carrying on or continuance
of any activity, operation, installation, use or emission referred to in
paragraph (ei) or (f) of subsection (2), the investigation, by such persons in
such manner and circumstances as may be prescribed, as to whether a notice
should continue in force, the imposing of penalties not exceeding 4 penalty
units for any failure to comply with any such notice, and the payment of fees
and charges for or in connection with any such
investigation.
(2B)
Without limiting the generality of any other
provision of this section, the Governor may, make regulations for and with
respect to the safety of persons who operate, use, or are carried in, a vessel
(not being a vessel engaged in the coasting trade) which is in, or has gone to
sea from, any navigable waters within, or within one nautical league from the
coast of, New South Wales including, without limiting the generality of the
foregoing, regulations relating to:
(a)
the design and construction of
vessels,
(b)
the carriage in a vessel of equipment for the
safe and proper navigation and use of the vessel,
(c)
the carriage in a vessel of life-saving equipment
and apparatus, and of means of making distress signals,
(d)
the carriage in a vessel of equipment for
facilitating rescue,
(e)
the use to be made of prescribed equipment
carried on a vessel,
(f)
the making or display by vessels of prescribed
signals or lights, and use of a vessel and its
equipment.
(3)
A regulation may:
(a)
be of general or specially limited application
according to time, place or circumstances, and may be general or restricted to
any specified class of subject matter or restricted to all subject matter
other than subject matter of a specified class or specified
classes,
(b)
provide for the issue, making, revocation,
cancellation or suspension of licences, registration certificates or permits
to or with respect to persons and property and for the payment of licence,
registration and permit fees,
(c)
provide for the payment of fees for inspections
and other services rendered by officers and employees of the
Board,
(d)
(i)
where the regulation is made under paragraph (c)
of subsection (2) for the purpose of preventing, prohibiting or regulating the
doing or continuance of anything likely to cause any such pollution as is
referred to in that paragraph by dangerous goods or volatile or furnace or
lubricating oil, or liquid derived from petroleum, shale or coal, impose a
penalty not exceeding 20 penalty units for any breach
thereof,
(ii)
in any other case, impose a penalty not exceeding
15 penalty units for any breach thereof,
(e)
fix a minimum as well as a maximum penalty, and
impose a daily penalty for any continuing breach thereof not exceeding 1
penalty unit per day,
(f)
provide that any costs or expenses incurred by
the Board or the Crown as a result of the breach thereof may be recovered in
any court of competent jurisdiction from the person convicted of such
breach,
(g)
make both the owner and the master of any vessel
liable for any breach of any such regulation committed from or in the use of
such vessel,
(h)
provide that any licence, registration
certificate or permit therein referred to may be issued, or any consent or
approval therein referred to may be given, upon any conditions deemed
appropriate by the Board, that any such condition may be varied or revoked,
and that a breach of any such condition shall constitute a breach of such
regulation.
(3A)
Where the boundaries of a port are described by a
regulation made pursuant to subsection (2) (q), the boundaries of the port as
so described may include an area of water adjacent to the entrance to the
port.
(4)
In this section:
dangerous
goods has the same meaning as in the Dangerous Goods (Road and Rail Transport) Act
2008.
mooring means the whole of the
apparatus used to secure a vessel in any navigable waters for any purpose
other than the normal incidents of a voyage, whether or not such apparatus or
any part thereof is itself beyond the shores of such waters, and whether or
not such apparatus, or any part thereof, is, has been, or is proposed to be
used by the same or any other person for any other purpose, and any apparatus
or group thereof used to secure more than one vessel shall constitute as many
moorings as there are vessels so secured, but does not include the gear or
equipment of a vessel by which such vessel is so secured.
wharf means any wharf, dock, pier,
jetty, landing-stage, slip or platform vested in the Crown or the Board and
includes any depot, shed, building or structure erected thereon or forming
part thereof or used in connection therewith and any land vested in the Crown
or the Board adjoining or adjacent to any wharf as hereinbefore defined and
used in connection therewith, but does not include any wharf as hereinbefore
defined the control and management of which is vested in a council within the
meaning of the Local Government Act
1993.
(4A)
(a)
If it appears to the Board, on the application of
any person affected by any regulation or part thereof, that compliance with
that regulation or part is impracticable or unnecessary, the Board may direct
that compliance with that regulation or part may be dispensed with, and may,
by the same direction, direct that some other requirement be substituted for
the requirement of the regulation or part thereof.
(b)
A breach of any requirement directed by the Board
to be substituted for any regulation or part of a regulation specified in the
direction shall be deemed to be a breach of that
regulation.
(c)
Any direction under this subsection may be given
under the hand of any officer or employee of the Board appointed by the Board
in that behalf.
(5)
A power to make a regulation under this section
in respect of anything vested in or controlled by the Board includes such a
power in respect of anything vested in or controlled by a Port Corporation or
the Authority within the meaning of the Ports and
Maritime Administration Act 1995.
(6)
A regulation made by the Maritime Services Board
under this section and in force immediately before the commencement of this
subsection is taken to have been made by the Governor.
s 38: Ins 1953 No 18,
sec 2 (e). Am 1960 No 51, sec 7 (d); 1966 No 63, sec 5 (1) (j); 1972 No 3, sec
3 (k); 1974 No 40, sec 7 (b); 1974 No 58, sec 2 (e); 1975 No 42, sec 17 (c);
1975 No 68, Sch 2; 1978 No 16, Schs 1 (19), 2 (28); 1987 No 48, Sch 32; 1990
No 108, Sch 1; 1992 No 112, Sch 1; 1993 No 47, Sch 1; 1994 No 3, sec 3; 1995
No 11, Sch 1.77 [2]; 1995 No 13, Sch 4; 2003 No 38, Sch 2.15; 2006 No 84, Sch
2.9 [4]; 2008 No 95, Sch 2.6.