An Act to provide for the safe operation of vessels on State waters.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Marine (Boating Safety—Alcohol and Drugs) Act 1991.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:analyst, breath analysing instrument, breath analysis and breath test have the same meanings as they have in the Road Transport (Safety and Traffic Management) Act 1999.Board means the Maritime Services Board.commercial purpose, in relation to a vessel, means use of the vessel:(a) for the carriage of persons or goods for money or any other valuable consideration, or(b) in any way in, or in connection with, a business or in trade or commerce.drug has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.hospital means a public or private hospital, and includes any premises, institution or establishment that is a hospital for the purposes of section 19 of the Road Transport (Safety and Traffic Management) Act 1999 or that is prescribed by the regulations.juvenile means a person between 12 and 16 years of age.licence means a licence relating to the operation of a vessel issued to a person under the marine legislation and includes:(a) a certificate of competency issued under the Commercial Vessels Act 1979, and(b) a certificate or other document recognised as a certificate of competency under section 30L (Recognition of certificates of other States etc) of that Act.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 Part 2.marine legislation has the same meaning as it has in the Marine Administration Act 1989.officer, in relation to the Board, includes an employee of the Board and any other person of whose services the Board makes use.operate, in relation to a vessel, means determine or exercise control over the course or direction of the vessel, or over the means of propulsion of the vessel, while the vessel is under way.recreational purpose, in relation to use of a vessel, means use of the vessel:(a) wholly for the purpose of recreation or sport and not for a commercial purpose, or(b) for any other purpose prescribed for the purposes of this definition.vessel includes:(a) a ship, lighter, barge, boat, raft, craft, hydroplane, hydrofoil and hovercraft, and any floating object or apparatus (whether amphibious or not) used wholly or partly for the conveyance of persons or things by water, and(b) a seaplane, andbut does not include a surfboard or similar device used by a swimmer or surfer to support the swimmer or surfer in the water,(c) a sailboard,vessel under way means a vessel that is not:(a) at anchor, or(b) made fast to the shore, or(c) aground.(2) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, if the function is a duty, a reference to the performance of the duty.s 3: Am 1999 No 19, Sch 2.20 [1]–[3].
4 Application of Act
This Act does not apply to or in relation to the operation of a vessel belonging to an arm of the Defence Force of Australia or to the naval, military or air forces of a country other than Australia.
5 Prescribed concentrations of alcohol
A reference in this Act to:(a) the low range prescribed concentration of alcohol is a reference to 0.02 grammes or more, but less than 0.08 grammes, of alcohol in 100 millilitres of blood, and(b) the middle range prescribed concentration of alcohol is a reference to a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 100 millilitres of blood, and(c) the high range prescribed concentration of alcohol is a reference to a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
Part 2 Offences relating to alcohol or other drugs
6 Operating vessel under influence of alcohol or other drug
(1) A person must not operate a vessel on 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 on 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 information 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 information, 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 information, or(ii) a combination of drugs any one or more of which was or were described in the information.(4) In this section:master, in relation to a vessel, means a person (other than a pilot) having charge of the vessel.
7 Operating vessel or supervising juvenile with prescribed concentration of alcohol in blood
(1) A person who operates a vessel on any waters while a concentration of 0.02 grammes or more of alcohol in 100 millilitres of blood is present in the person’s blood is guilty of an offence against this Act.(2) It is a defence to a prosecution under subsection (1) if the defendant establishes that, at the time of the alleged offence, the defendant:(a) was 18 or more years of age, and(b) operated the vessel for a recreational purpose.This defence is not available if the prosecution proves that 0.05 grammes or more of alcohol in 100 millilitres of blood was present in the defendant’s blood at the time of the alleged offence.(3) A person who:(a) is required by or under the marine legislation to supervise a juvenile operator of a motor vessel, andis guilty of an offence against this Act.(b) permits the juvenile to operate the motor vessel on any waters while a concentration of 0.05 grammes or more of alcohol in 100 millilitres of blood is present in the blood of the person,(4) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the low range prescribed concentration of alcohol:(a) in the case of a first offence—to a penalty not exceeding 5 penalty units, or(b) in the case of a second or subsequent offence—to a penalty not exceeding 10 penalty units.(5) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the middle range prescribed concentration of alcohol, to a penalty not exceeding 10 penalty units, or to imprisonment for a period not exceeding 6 months, or both.(6) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the high range prescribed concentration of alcohol:(a) in the case of a first offence—to a penalty not exceeding 15 penalty units, or to imprisonment for a period not exceeding 9 months, or both, or(b) in the case of a second or subsequent offence—to a penalty not exceeding 20 penalty units or to imprisonment for a period not exceeding 12 months, or both.(7) For the purposes of this section, if a person is guilty of an offence under this section, that offence:(a) is a second or subsequent offence under this section if and only if, within the period of 5 years immediately before being convicted of the offence, the person was convicted of a major offence, and(b) in any other case is to be treated as a first offence.
8 Double jeopardy
(1) A person is not liable to be convicted of both:(a) an offence under section 6 of operating a vessel while under the influence of alcohol, and(b) an offence under section 7.(2) A person is not liable to be convicted of both:(a) an offence under section 6 of operating a vessel while under the influence of alcohol, and(b) an offence under section 21 of refusing or failing to submit to a breath analysis or to provide a sample of blood or urine.
9 Application 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 6 or 7 or an offence of aiding, abetting, counselling or procuring the commission of such an offence.s 9: Am 1999 No 94, Sch 4.37.
10 Cancellation and suspension of 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 the marine legislation to hold a licence or recognised licence in order to operate the vessel, the court may, by order:(a) cancel or suspend the licence or withdraw the recognition of the recognised licence, and(b) disqualify the convicted person from holding or obtaining such a licence or being recognised as the holder of such a recognised licence for a period specified by the court.(2) The holder of a licence or recognised licence referred to in subsection (1) who is convicted of an offence under this Part (the convicted person) is automatically disqualified from holding such a licence or being recognised as the holder of such a recognised 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, andexcept as provided by subsection (3).(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) The court before which the person is convicted may order that the convicted person be disqualified for a shorter period specified in the order.(4) Any disqualification under this section is in addition to any penalty imposed for the offence.(5) The holder of a licence cancelled or suspended or recognised licence from which recognition is withdrawn under this section is to deliver the licence to the Board as soon as practicable after the licence is suspended or cancelled or the recognition withdrawn.(6) A recognised licence that is delivered to the Board is to be returned to the holder of the licence after endorsement to indicate that recognition of the licence has been withdrawn.(7) In this section:recognised licence means a certificate or other document recognised as a certificate of competency under section 30L of the Commercial Vessels Act 1979.
Part 3 Provisions relating to breath analysis etc
Division 1 Preliminary
11 Interpretation
(1) A reference in this Part to a police officer authorised by the Commissioner of Police to operate breath analysing instruments is a reference to a police officer so authorised under the Road Transport (Safety and Traffic Management) Act 1999.(2) For the purposes of this Part, a thing is regarded as having been done by a medical practitioner or analyst if it is done by a person acting under the supervision or direction of a medical practitioner or analyst.(3) For the purposes of this Part, 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.s 11: Am 1999 No 19, Sch 2.20 [4].
Division 2 Testing for alcohol
12 Breath testing
(1) 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, or is or was in charge of a motor vessel operated by a juvenile, while there is or was alcohol in the person’s 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 which affects the seaworthiness of the vessel or the safety of persons on board the vessel or damage to other property apparently in excess of $1,000 (or, if another amount is prescribed, the prescribed amount).(2) Nothing in this section limits section 30G (Requirements in case of accident) of the Maritime Services Act 1935.
13 Breath analysis following breath testing
(1) A police officer may require a person to submit to a breath analysis in accordance with the directions of the officer if:(a) it appears to the officer as a result of a breath test or assessment under this Part that 0.02 grammes or more of alcohol in 100 millilitres of blood may be present in the person’s blood, or(b) the person when required by the officer to undergo a breath test refuses or fails to do so in accordance with the direction of the officer.(2) If a police officer is entitled to require a person to submit to a breath analysis under this section, the officer may:(a) arrest the person without warrant, and(b) take the person with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the person for the purposes of the breath analysis.(3) A breath analysis is to be carried out by a police officer, authorised by the Commissioner of Police to operate breath analysing instruments, at or near a police station or such other place as the officer considers desirable.(4) As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysis instrument is to deliver to the person a statement in writing signed by the officer specifying:(a) the concentration of alcohol determined by the analysis to be present in the person’s blood and expressed in grammes of alcohol in 100 millilitres of blood, and(b) the day on which and time of the day at which the breath analysis was completed.(5) A person who is required to submit to a breath analysis may request the police officer making the requisition to arrange for the taking (in the presence of a police officer) of a sample of the person’s blood for analysis, at the person’s own expense, by:(a) a medical practitioner nominated by the person, or(b) a medical practitioner nominated by the police officer at the person’s request.(6) The making of any such request or the taking of a sample of a person’s blood does not absolve the person from the obligation imposed on the person to submit to a breath analysis in accordance with this section.(7) A medical practitioner by whom a sample of a person’s blood is taken in accordance with an arrangement referred to in subsection (5) is to divide the sample into 2 approximately equal portions.(8) Of the 2 portions:(a) one is to be handed to the person from whom it was taken, and(b) one, enclosed in a suitable sealed container, is to be handed to the police officer present at the time the sample was taken.
14 Blood or urine samples taken at hospitals from persons involved in accidents
(1) A police officer may require a person who is 15 or more years of age who attends or is admitted to a hospital for examination or treatment because the person has been involved in an accident while operating a vessel to provide as soon as practicable a sample of the person’s blood or urine in accordance with the directions of a medical practitioner who attends the person at the hospital.(2) The blood or urine sample is to be taken by a registered nurse who is accredited by a hospital as competent to perform the sampling procedures if there is no medical practitioner present to attend the person at the hospital.(3) Any such medical practitioner or nurse is to take the sample if informed by the police officer that the sample is required to be taken by the practitioner or nurse under this Act.(4) A requirement under subsection (1) need not be made directly to the person concerned but may be made through a medical practitioner or any such nurse who attends the person at the hospital.
15 Blood or urine samples taken for detecting drugs
(1) If:(a) a person has undergone a breath test in accordance with this Part, anda police officer may require the person to submit to an assessment of his or her sobriety in accordance with the directions of the officer.(b) the result of the test does not permit the person to be required to submit to a breath analysis,(2) A person must not be required to submit to the assessment unless the police officer has a reasonable belief that, by the way in which the person was acting, the person might be under the influence of drugs.(3) If:(a) the person refuses to submit to the assessment, orthe officer may require the person to provide a sample of the person’s blood or urine at a hospital in accordance with the directions of a medical practitioner who attends the person.(b) after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug,(4) Any such medical practitioner is to take the sample if informed by the police officer that the sample is required to be taken by the practitioner under this Act.(5) If a police officer is entitled to require a person to provide a sample of blood or urine under this section, the officer may:(a) arrest the person without warrant, and(b) take the person with such force as may be necessary to a hospital and there detain the person for the purpose of obtaining the sample.
16 Restrictions on requiring breath test, assessment, breath analysis or sample
A police officer must not require a person to undergo a breath test, submit to an assessment or a breath analysis or provide a sample of blood or urine:(a) if the person has been admitted to a hospital for medical treatment, unless the medical practitioner who attends the person at the hospital (or, if no medical practitioner is present to attend the person, a registered nurse who is accredited by a hospital as competent to perform the sampling procedures) has been notified of the intention to make the requisition and the medical practitioner or nurse does not object on the ground that compliance would be prejudicial to the proper care or treatment of the person, or(b) if it appears to the officer that it would (because of injuries sustained by the person) be dangerous to the person’s medical condition if the person complied with the requisition, or(c) at any time after the expiration of 2 hours from the time the person operated the vessel concerned, or(d) at the person’s home.
17 Action by medical practitioner or nurse with respect to samples of blood or urine
(1) A medical practitioner or nurse who takes a sample of blood or urine when required under this Part to do so 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.(2) Of the 2 sealed containers:(a) one must be handed by the medical practitioner or nurse to the person from whom the sample was taken or to some other person on behalf of the person, and(b) the other must be handed by the medical practitioner or nurse to the police officer present when the sample was taken or dealt with as otherwise provided by the regulations.
18 Analysis of samples of blood or urine
(1) A police officer may arrange for a portion of a sample of a person’s blood or urine taken in accordance with this Part to be submitted for analysis by an analyst to determine the concentration of alcohol in the blood or to determine whether the blood or urine contains a drug.(2) If the blood or urine sample was obtained under section 14, a police officer may not make arrangements under this section for the analysis of the sample to determine the concentration in the blood or urine of a drug other than alcohol except in circumstances where the police 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 and where:(a) no police officer attended the scene of the accident that led to the taking of the sample, or(b) although a police officer or police 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 section 15, to a breath test or assessment of his or her sobriety.(3) An analyst to whom a portion of a sample of blood or urine is submitted for analysis under this section may carry out an analysis of the portion to determine the concentration of alcohol in the blood or to determine whether the blood or urine contains alcohol or any other drug.
19 Destruction of blood samples
(1) A person must not wilfully destroy a portion of a sample of blood taken under section 14 or 15.Maximum penalty: 20 penalty units.(2) A person is not guilty of an offence under this section if the portion is destroyed:(a) by an analyst in the course of or on completion of an analysis of the portion, or(b) in the case of a portion referred to in section 17 (2) (a)—by or at the direction of the person from whom the sample was taken or after the expiration of one month commencing on the day on which the sample was taken, or(c) in the case of a portion referred to in section 17 (2) (b)—by or at the direction of a police officer if the portion is not required for analysis.
20 Medical practitioners and nurses—protection from liability
No civil or criminal liability is incurred by a medical practitioner or nurse in respect of anything properly and necessarily done by the practitioner or nurse in the course of taking a sample of blood or urine from a person if the practitioner or nurse:(a) believed on reasonable grounds that the practitioner or nurse was required under this Act to take the sample of blood or urine from the person, oror by any person acting under the supervision or direction of the medical practitioner or nurse.(b) was informed by a police officer that the person was a person from whom the practitioner or nurse was required under this Act to take the sample of blood or urine,
Division 3 Offences relating to testing for alcohol or other drugs
21 Refusal to be tested
(1) Any person who, when required under this Part to do so, refuses or fails:(a) to undergo a breath test, orin accordance with this Part is guilty of an offence.(b) to submit to an assessment,Maximum penalty: 10 penalty units.(2) Any person who, when required under this Part to do so, refuses or fails:(a) to submit to a breath analysis, orin accordance with this Part is guilty of an offence.(b) to provide a sample of blood or urine,Maximum penalty: 25 penalty units or imprisonment for 9 months, or both.(3) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant was unable on medical grounds to comply with the requirement concerned.
22 Interfering with results of test
A person who does anything to introduce, or alter the concentration of, alcohol or any other drug in the person’s blood or urine before submitting to a breath analysis or providing a sample of blood or urine under this Part is guilty of an offence if the person does so for the purpose of preventing or restricting the use of the results of the analysis in any proceedings against the person.Maximum penalty: 15 penalty units or imprisonment for 9 months, or both.
23 Taking of samples by medical practitioner
(1) Any medical practitioner who, when required under this Part to take a sample of blood or urine from a person:(a) refuses or fails to take the sample, oris guilty of an offence.(b) does not comply with the requirements of section 17 with respect to any sample taken,Maximum penalty: 5 penalty units.(2) It is a defence to a prosecution for an offence under subsection (1) if the medical practitioner satisfies the court that:(a) the practitioner 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 was, because of the behaviour of the person, unable to take the sample, or(c) there was other reasonable cause for the practitioner not to take the sample.(3) A person who hinders or obstructs a medical practitioner who is attempting to take a sample of the blood or urine of any other person under this Part is guilty of an offence.Maximum penalty: 10 penalty units.
Division 4 Certificate evidence in proceedings
24 Certificate evidence of concentration of alcohol in blood determined by breath analysis
(1) In proceedings for an offence under section 7, evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a police officer authorised by the Commissioner of Police to operate breath analysing instruments.(2) The concentration of alcohol so determined is taken to be the concentration of alcohol in the blood of the person at the time the person operated or was in charge of the vessel concerned if the breath analysis was made within 2 hours after that time, unless the defendant proves that the concentration of alcohol in the defendant’s blood at that time was less than 0.02 grammes of alcohol in 100 millilitres of blood.(3) In proceedings for an offence under section 7, a certificate purporting to be signed by a police officer and certifying that:(a) the police officer is duly authorised by the Commissioner of Police to operate breath analysing instruments, and(b) the person named in the certificate submitted to a breath analysis, and(c) the apparatus used by the police officer to make the breath analysis was a breath analysing instrument within the meaning of the Road Transport (Safety and Traffic Management) Act 1999, 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 analysis instrument and expressed in grammes of alcohol in 100 millilitres of blood) was present in the blood of that person on the day and at the time stated in the certificate, andis prima facie evidence of the particulars certified in and by the certificate.(f) a statement in writing required by section 13 was delivered in accordance with that subsection,(4) In proceedings for an offence under section 7, 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 prima facie evidence of the particulars certified in and by the certificate.(5) In any proceedings for an offence under section 7, evidence of the condition of a breath analysing instrument or the manner in which it was operated is not required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.ss 24–26: Am 1999 No 19, Sch 2.20 [4].
25 Certificate evidence of concentration of alcohol in blood determined by analysis of sample of blood
(1) In proceedings for an offence under section 7, evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by an analysis under this Part of a portion of a sample of the person’s blood.(2) The concentration of alcohol so determined is taken to be the concentration of alcohol in the blood of the person charged at the time the person operated the vessel concerned, if that sample of blood was taken within 2 hours after that time, unless the defendant proves that the concentration of alcohol in the defendant’s blood at that time was less than 0.02 grammes of alcohol in 100 millilitres of blood.(3) In proceedings for an offence under section 7, a certificate purporting to be signed by a medical practitioner and certifying any one or more of the following matters:(a) that the practitioner was a medical practitioner who attended a specified person at a hospital,(b) that the practitioner took a sample of the person’s blood in accordance with this Part on the day and at the time stated in the certificate,(c) that the practitioner dealt with the sample in accordance with section 17,(d) that the practitioner used equipment of a specified description in so taking and dealing with the sample,is prima facie evidence of the particulars certified in and by the certificate.(e) that the container was sealed, marked or labelled, in a specified manner,(4) In proceedings for an offence under section 7, a certificate purporting to be signed by a police officer certifying any one or more of the following matters:(a) that the police officer received a portion of a sample of a specified person’s blood taken in accordance with this Part,(b) that the police officer arranged for the portion to be submitted for analysis by an analyst to determine the concentration of alcohol in the blood,is prima facie evidence of the particulars certified in and by the certificate.(c) that the container was sealed, marked or labelled, in a specified manner,(5) In proceedings for an offence under section 7, a certificate purporting to be signed by an analyst and certifying any one or more of the following matters:(a) that the analyst received, on a specified day, a portion of a sample of a specified person’s blood in a container submitted for analysis under this Part,(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 portion 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,is prima facie evidence:(f) that the analyst was, at the time of the analysis, an analyst within the meaning of the Road Transport (Safety and Traffic Management) Act 1999,(g) of the particulars certified in and by the certificate, and(h) that the sample was a portion of the sample of the blood of that specified person, and(i) that the portion had not been tampered with before it was received by the analyst.ss 24–26: Am 1999 No 19, Sch 2.20 [4].
26 Certificate evidence of presence of drugs
(1) In proceedings for an offence under section 6 (Operating vessel under influence of alcohol or other drug):(a) evidence may be given of:(i) the presence of a drug, orin the blood or urine of the person charged, as determined pursuant to an analysis under this Part of a portion of a sample of the person’s blood or urine, and(ii) the presence of a particular concentration of a drug,if the sample was taken within 2 hours after that time, unless the defendant proves the absence of the drug, or the presence of the drug in a different concentration, at that time.(b) the drug the presence of which is so determined or the particular concentration of the drug the presence of which is so determined is taken to have been present in the blood or urine of that person at the time the person operated the vessel concerned,(2) In proceedings for an offence under section 6, a certificate purporting to be signed by a medical practitioner certifying any one or more of the following matters:(a) that the practitioner was a medical practitioner who attended a specified person at a hospital,(b) that the practitioner took a sample of the person’s blood or urine in accordance with this Part on the day and at the time stated in the certificate,is prima facie evidence of the particulars certified in and by the certificate.(c) that the practitioner dealt with the sample in accordance with section 17,(3) In proceedings for an offence under section 6, a certificate purporting to be signed by a police officer certifying any one or more of the following matters:(a) that the police officer received a portion of a sample of a specified person’s blood or urine taken in accordance with this Part,(b) that the police officer arranged for the portion to be submitted for an analysis by an analyst to determine whether any drug was present in the sample,is prima facie evidence of the particulars certified in and by the certificate.(c) that the container was sealed, and marked or labelled, in a specified manner,(4) In proceedings for an offence under section 6, 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 portion of a sample of a specified person’s blood or urine in a container submitted for analysis under this Part,(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 portion to determine whether any drug was present in the sample,(e) that a specified drug ascertained pursuant to the analysis was present in that portion and, if so certified, was present in that portion in a specified concentration,is prima facie evidence:(f) that the analyst was, at the time of the analysis, an analyst within the meaning of the Road Transport (Safety and Traffic Management) Act 1999,(g) of the particulars certified in and by the certificate, and(h) that the portion was a portion of the sample of the blood or urine of that specified person, and(i) that the portion had not been tampered with before it was received by the analyst.(5) Nothing in this section enables evidence to be given of or in relation to:(a) the presence of a drug other than alcohol, orin the blood or urine of a person charged with an offence under section 6, as determined by an analysis of a sample obtained under section 14, unless the court is satisfied that the analysis was not arranged in contravention of section 18 (2).(b) the presence of a particular concentration of a drug other than alcohol,ss 24–26: Am 1999 No 19, Sch 2.20 [4].
27 Certificate evidence may specify minimum concentrations
If, in any proceedings in which evidence is permitted to be given of the results of an analysis of a sample of a person’s blood or urine, evidence is given by a certificate under this Part 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 Part.
Division 5 Miscellaneous
28 Contracts of insurance
(1) In this section, the following are prescribed facts:(a) the fact that a person has undergone a breath test or submitted to a breath test or breath analysis,(b) the result of a breath test or breath analysis,(c) the result of an analysis of blood or urine,(d) the fact that a person has been convicted of an offence under section 7.(2) A prescribed fact is not, for the purposes of any contract of insurance, admissible as evidence of the fact that that person was at any time under the influence of, or in any way affected by, a drug or incapable of operating a vessel, but nothing in this subsection precludes the admission of any other evidence to show any such fact.(3) The provisions of this section have effect despite anything contained in any contract of insurance, and a covenant, term, condition or provision purporting to exclude, limit, modify or restrict the operation of this section is void.(4) Any covenant, term, condition or provision contained in any contract of insurance purporting to exclude or limit the liability of an insurer in the event of the operator of a vessel being convicted of an offence under section 7 is void.
29 Blood samples taken in another State or Territory
(1) A medical practitioner who, in another State or in a Territory, takes a sample of blood:(a) from a person attended by the medical practitioner in consequence of an accident in New South Wales waters, andmay 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.(b) in accordance with the provisions of a law of that other State or Territory that substantially corresponds to the provisions of sections 14, 17 and 18,(2) In proceedings for an offence under section 7, a certificate purporting to be signed by a person who, in another State or in a Territory:(a) took a blood sample, orin accordance with the provisions of a law of that State or Territory that substantially corresponds to the provisions of sections 14, 17 and 18 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 section 18.(b) analysed a blood sample,
Part 4 Powers of police officers and officers of Board
30 Powers of police officers and officers of Board
(1) A police officer may for the purposes of this Act 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 police officer reasonably suspects to have been committed while the vessel was under way,(d) require any person whom the police officer reasonably suspects of having committed an offence against this Act or the regulations or who, in the opinion of the police 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) An officer of the Board may, to assist any police officer in enforcing this Act, exercise a power referred to in subsection (1) (a) or (b).(3) A person who:(a) fails or refuses to comply with a requirement under this section, or(b) hinders a police officer or officer of the Board acting in the exercise of the police officer’s or officer’s powers under this section, oris guilty of an offence.(c) when required to state his or her name and residential address, states a false name or address,Maximum penalty: 10 penalty units.(4) A person is not guilty of an offence of failing or refusing to comply with a requirement under subsection (1) (c) or (d) unless it is established that the police 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 a police officer.Maximum penalty: 10 penalty units.
31 Identification of offender
(1) If a person is reasonably suspected by a police officer to have committed an offence against this Act or the regulations, 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 which 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 section is guilty of an offence.Maximum penalty: 10 penalty units.(4) A person is not guilty of an offence under this section 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 section and to contain particulars of the name and residential address of a person at the time of commission of an alleged offence against this Act or the regulations 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.
Part 5 Miscellaneous
32 Act binds the Crown
This Act binds the Crown not only in right of New South Wales but also, in so far as the legislative power of Parliament permits, in all its other capacities.
33 Proceedings for offences
Proceedings for an offence against this Act or the regulations are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.
34 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, regulations may be made for or with respect to the following:(a) the methods and conditions to be observed by medical practitioners in taking samples of blood or urine under Part 3,(b) the storage of samples so taken,(c) the delivery or transmission of portions of samples so taken to the persons from whom they are taken, to police officers or to analysts,(d) the destruction of portions of samples so taken.(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.
35 Savings, transitional and other provisions
Schedule 1 has effect.
36 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that Schedule.
37 Consequential repeal of regulation
Regulation 3 (2) of the Water Traffic Regulations—N.S.W. is repealed.
Schedule 1 Savings, transitional and other provisions
(Section 35)
Part 1 Regulations
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act.(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of publication.
Part 2 Other provisions
2 Cancellation and suspension of licences
Section 10 does not apply in respect of the conviction of a person of a major offence before the commencement of that section.
Schedule 2 Amendment of other Acts
(Section 36)
Section 414A (Certificates to be evidence):After section 414A (8), insert:(9) A certificate which would, by virtue of Part 3 of the Marine (Boating Safety—Alcohol and Drugs) Act 1991, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence under that Part is prima facie evidence of those particulars:(a) at any inquest, or(b) where a person is charged before a Magistrate or before any Court with an indictable offence.(10) A certificate referred to in subsection (9) is not admissible, in proceedings under the Drug Misuse and Trafficking Act 1985, as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act.(11) Where any certificate under section 24 (Certificate evidence of concentration of alcohol in blood determined by breath analysis) of the Marine (Boating Safety—Alcohol and Drugs) Act 1991 is admitted in evidence by virtue of subsection (9), evidence of the condition of a breath analysing instrument or the manner in which it was operated is not required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.
Section 3 (Definitions):