This is an application for administrative review of a decision made by Transport for NSW ('the Respondent') cancelling FLK's, ('the Applicant'), PWC Boat Licence pursuant to s38(1)(c) of the Marine Safety Act 1998 ('the MSA').
The Applicant has been given a pseudonym FLK due to him being a minor. FLK was represented in the proceedings by his father, as his agent.
[2]
Background
On 24 December 2021, the Respondent issued FLK a notice to show cause in respect to whether his PWC Boat Licence should not be cancelled or suspended. The show cause notice was sent to FLK because he had committed three offences against the provisions of the marine legislation within a period of 24 months from the date of his last recorded offence. The offences giving rise to the decision to cancel FLK's PWC Boat Licence included:
(i) compliance action details relating to Penalty Notice issued 2 October 2022, and NSW Police Force COPS entry;
FLK was charged with not keeping a proper lookout resulting in a collision with another vessel. The COPS report includes 'About 12.50 on Saturday 2nd October 2021 vessel 1 was travelling upstream with a group of other tinnies and a jet ski. This vessel is believed to have been travelling at a speed greater than the signposted 8 knots and on the wrong side of the channel with the vessel's bow raised blocking his view. At the same time vessel 2 was travelling downstream at a speed of about 3 knots on the right hand side of the channel. At a bend in the river, the bow of vessel 1 has collided with the starboard side of vessel 2. Both the driver and passenger of vessel 1 have been thrown into the water. Vessel 2 immediately stopped and assisted both of them onto his vessel.'
FLK was fined and did not challenge the infringement.
(ii) compliance action details relating to penalty notice issued 29 August 2021;
FLK observed operating a PWC on a waterway at a speed 15 knots plus in an 8 knot zone.
FLK was fined and did not challenge the infringement.
(iii) compliance action details relating to penalty notice issued 1 May 2021.
FLK issued with a penalty notice concerning defect notice operating 40 horsepower Mercury with maxim 25 horsepower or less limit. FLK was also not carrying a whistle.
FLK was fined and did not challenge the infringement.
On 18 January 2022, FLK responded to the notice to show cause. However, the reply was inadvertently not put before the review panel when FLK's PWC Boat Licence was cancelled.
On 18 March 2022, the Respondent wrote to FLK advising him, that his PWC Boat Licence would be cancelled effective from 11 April 2022 for a period of 6 months.
On 25 March 2022, the Applicant requested internal review of the 18 March 2022 decision.
On 4 April 2022, the Respondent replied to FLK, advising him the decision of the Respondent made on 18 March 2022 was upheld.
When the Respondent considers matters such as cancelling a PWC Boat Licence it refers documentation to the Marine Safety Licence Sanctions Panel ('MSLSP'). The Panel reviews the documentation, which includes the offences of the person whose licence is under review, and makes a decision which is implemented by the Respondent. It is this process that was carried out in determining to cancel FLK's PWC Boat Licence.
[3]
The legislative scheme
The objects of the MSA are set out s 3 and relevantly include:
3 Objects of Act
The objects of this Act are as follows -
(a) to ensure the safe operation of vessels in ports and other waterways,
(b) to promote the responsible operation of vessels in those waters so as to protect the safety of amenity of other users of those waters and the amenity of occupiers of adjoining land,
(c) to provide an effective framework for the enforcement of marine legislation,
…
Section 4 of the MSA defines a marine safety licence as a marine safety licence referred to in s 29 of the MSA. Section 29(e) of the MSA sets out that a marine safety licence includes a boat driving licence:
29 Types of marine safety licence
For the purposes of this Act, there are the following types of marine safety licences -
(a) vessel registration certificate - being a marine safety licence for a vessel that is required by Division 2 of Part 5,
…
(e) boat driving licence - being a marine safety licence to operate a power-driven recreational vessel that is required by Division 5 of Part 5,
…
Section 42 of the MSA provides for an appeal to this Tribunal in the event a person's licence is suspended or cancelled in situations other than by a court. Section 42:
42 Application for administrative review
A person who is dissatisfied with any of the following decisions under this Act may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision -
(a) the refusal to grant a marine safety licence to the person,
(b) the imposition of conditions or any other limitation or restriction on the person's marine safety licence (otherwise than by regulation),
(c) the suspension or cancellation of the person's marine safety licence (otherwise than by a court).
Clause 78(1)(d) of the Marine Safety Regulations 2016 ('the MSR') provides authority for the Respondent to suspend or cancel a marine safety licence, being a boat driver in prescribed circumstances. The Respondent made a decision to cancel the Applicant's PWC Boat Licence due to offences he had committed in contravention of the MSA and the MSR. Clause 78 relevantly provides:
78 Suspension or cancellation of marine safety licence
(1) For the purposes of s38(1)(c) of the Act, the prescribed circumstances in which the responsible licensing official may suspend or cancel a marine safety licence are as follows -
(a) any information provided by the holder of the licence for the purposes of the marine legislation is found to be false, misleading or inadequate in a material particular,
(b) the holder of the licence, in the opinion of the responsible licensing official, a fit and proper person to hold the licence,
(c) the holder of the licence has failed to comply with any condition of the licence,
(d) the holder of the licence has committed an offence against a provision of the marine legislation or s52B of the Crimes Act 1990 or any provision of the law of the Commonwealth or of another State or a Territory that the responsible licensing official reasonably considers to be similar to a provision of the marine legislation or that section.
It is not in contest that the Tribunal has jurisdiction pursuant to the provisions of s 42 of the MSA and s 63 of the Administrative Decisions Review Act 1997 ('ADR Act') to determine this matter.
Section 63 of the ADR Act requires the Tribunal to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. In determining the review of the decision made by the Respondent the Tribunal can decide:
1. to affirm the administrative reviewable decision, or
2. to vary the administrative reviewable decision, or
3. to set aside the administrative reviewable decision and make a decision in substitution for the administrative reviewable decision it set aside, or
4. to set aside the administrative reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Respondent seeks for the Tribunal to affirm the internal review decision. FLK seeks the Tribunal to set aside the internal review decision to cancel his PWC Boat Licence and direct that the Respondent issue a new licence.
[4]
Evidence
FLK relies upon two bundles of documents which were received on 15 June 2022 and 5 July 2022.
The Respondent filed s 58 documents on 16 June 2022 and written submissions.
FLK did not give evidence.
The hearing proceeded by way of the above documentation and oral submissions.
[5]
FLK's Submissions
FLK's father submitted that FLK received 3 infringements, the last being 22 October 2021. Eighty-three days later the MSLSP decided to issue a show cause notice to FLK. Despite FLK responding on 18 January 2022, the MSLSP decided to cancel FLK's licence. As set out above, the MSLSP did not have the reply to the show cause notice. The reply is before the Tribunal and has been taken into consideration in the disposition of the proceedings.
FLK relies of his reply to the show cause notice and makes the following submissions.
In relation to the offence in (iii) paragraph [3] above, FLK said on the day he prepared his safety equipment he forgot his whistle. He says he has "now learnt to ensure that he carries all essential safety equipment on an outing" in his boat.
In relation to the offence in (ii) at paragraph [3] above, FLK said he was unaware of the infringement being sent to him as it was sent to his father. He said that one of the outcomes from him speeding less than 10 knots over on his jet ski resulted in it being sold and he will not be operating a jet ski again. He also said that due to this infringement he will not be speeding in vessels any further.
As it relates to (i) in paragraph [3] above, FLK said that the incident on 2 October 2021 was "minor resulting in no injuries and minimal damage to the other vessel. On that day I was able to fully understand the dangers of operating a vehicle, and the consequences which come with not following the rules. I have not received any infringement since this incident."
FLK makes a general submission in his response to the show cause notice and states:
My PWC boat license [sic] is a vital asset to not only me, but also my friends and family as I am often asked to tow their broken down boats. Additionally, it has been pointed out to me that I consistently wear my lifejacket, including the first and third instances listed above despite it being unnecessary due to me having at least one passenger. All in all, I believe that through my previous experience I have gained a vast amount of knowledge and responsibility. I know that due to this, I have been made a better and safer operator of all vessels.
FLK then sought for the Respondent not to cancel this PWC Boat Licence.
FLK's father concluded in his oral submissions by stating that it seems the object of the MSLSP to suspend or cancel boat licences "is one which people are consistent in their failure to comply with the rules." The three offences in which FLK has been charged do not show a pattern of consistent failure to comply with maritime laws.
The Respondent submits that FLK's behaviour and lack of adherence to signposted speed limits and rules, does not demonstrate the responsible operation of vessels on public waterways. In addition to the penalty notices referred to in paragraph [3] above, the Respondent put in evidence seven cautions that were issued to FLK from 2 June 2019 to 5 December 2021. Those cautions included SLK operating a vessel and not displaying a registration number, carrying non-compliant safety equipment, operating a PWC vessel by more than 10 knots or more, contravene condition of marine safety licence not carrying PWC licence, not having a PWC behaviour label affixed as prescribed and drive 10 knots or more with no licence or older person over 16 years present.
The Respondent submits that the Applicant's conduct, which includes the cautions, which were not disputed during the hearing by FLK's father, are alarming and demonstrate a consistent failure to adhere to maritime laws.
[6]
My conclusion
FLK was 15 years of age at the time of this hearing. He had been driving a boat for approximately 6 years. He was the driver of both a jet ski and other marine vessel during the period in which he has held his licence and driven boats. In the short period of time in which FLK has held a licence he has incurred three infringements and seven warnings. Significantly, three of the official cautions relate to operating a vessel exceeding the speed limit. The infringement notice he received in (ii) in paragraph [3] above also related to exceeding the speed limit. While the failure to carry a whistle incurred an infringement notice on its own is not significant, when considered in combination with the accumulation of official cautions and infringement notices, it establishes a pattern of flagrant failure to adhere to maritime law.
I have given considerable weight to the 2 offences set out in (i) and (ii) in paragraph [3] above. In my mind, perhaps due to the age of FLK, or a simple disregard for the law, speeding and failing to keep a proper lookout whilst driving a vessel poses a real danger to other users of the waterway.
I accept FLK has shown remorse in terms of his offending. However, when considering the objects of the MSA, the safe operation of vessels and the responsible operation of those vessels in waters to protect the safety and amenity of other users, those factors must be held paramount.
Despite a number of cautions, FLK continued to offend. Indeed, the most serious offence relates to (i) in paragraph [3] above which caused both FLK and his passenger to be thrown into the water and damage to another vessel on the waterway. This was due to the failure of FLK to keep a proper lookout whilst operating his vessel. I do not accept on these facts alone, that the collision was minor as contended by FLK. It must have been of such force that it caused he and his passenger to be ejected from the vessel he was driving into the water. I find that FLK must have been driving the vessel at such a speed, that he could not control the vessel and in doing so he was not keeping a proper lookout for other vessels.
In taking into consideration the nature of the offences and the interests of the public in ensuring that people who are issued with a boat driver's licence are able to comply with the law, I find that FLK poses a danger to other users of the waterway.
The internal review decision of the Respondent is the correct and preferrable decision. It is affirmed.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 10 November 2022