Harbors and Navigation Act 1993

The Act casts a wide net. Recreational boaters must hold a boat operator’s licence (or exemption or prescribed certificate) to operate powered vessels or prescribed classes (s 47). They must register and mark vessels (s 55), carry required equipment (s 65), and comply with alcohol and drug rules that mirror road traffic standards (s 70). Operators of hire-and-drive vessels face additional obligations (s 47A), including age and instruction requirements for houseboats on the River Murray.

Commercial operators — masters and crew of domestic commercial vessels, fishing vessels and other commercial craft — are subject to the Act except where the Marine Safety (Domestic Commercial Vessel) National Law expressly displaces it (s 6A). They must comply with pilotage rules (s 35), harbor rules (s 29AA), operational directions (s 29B) and safety equipment standards. Owners are jointly liable with operators for many offences (e.g. ss 55(2), 65(2), 75(3)).

Port operators under port operating agreements (s 28B) assume day-to-day control and management, must maintain navigable depth and aids, direct vessel movements, maintain emergency plans, and face disciplinary action or official management for breach (ss 28F–28H). They appoint port management officers with boarding and direction powers (s 29).

Pilots and pilotage-exempt masters are licensed by the CE (ss 33–34) and subject to cancellation for incompetence or breach (s 33(5)). Compulsory pilotage applies to vessels ≥35 m in prescribed areas (s 35).

The Minister and CE retain overarching responsibility. The Minister is a corporation sole (s 8), controls navigational aids (s 22), may fix charges (s 31), issue safety directions (s 67A), act in emergencies (s 67), and grant aquatic licences (s 26). The CE administers the Act (s 9), issues licences and exemptions, requires surveys (s 68), and appoints authorised persons (s 12).

Authorised persons (including police and port management officers) exercise broad powers to board, direct, test, seize and issue expiation notices (s 14). Councils may make by-laws for harbors and adjacent land (s 18A) and are consulted before proclamations affecting their areas (s 18(3)).

Private landowners whose land is declared a harbor or port require Minister agreement (ss 27A–27B). Adjacent and subjacent landowners are subject to easements for navigational aids (s 22(3)–(4)) and may be liable for damage caused by their vessels (s 21).

Medical practitioners and registered nurses play a compulsory role in blood sampling (s 74, Sch 1A) and enjoy statutory immunity if acting in good faith (Sch 1A cl 6(1)).

The public generally must obey restricted-area regulations (s 27), safety directions (s 67A), harbor rules (s 29AA(7)), and must not interfere with aids (s 24) or obstruct officers (s 14(2)).

Finally, the Court of Marine Enquiry, SACAT, analysts, and the Commissioner of Police all have defined roles in enforcement, review and evidentiary processes.

Duties dominate. Vessel operators must not operate unsafe, unequipped or overloaded craft (s 65(1)), must carry emergency beacons where required (s 65A), and must hold appropriate licences or certificates (ss 47, 55). Crew members whose duties affect safe navigation are subject to the same alcohol and drug prohibitions as operators (s 70). Masters retain overriding responsibility even under pilotage (s 36(1)). Owners are strictly liable for damage caused by their vessels to Crown or private harbor property or navigational aids (s 21), irrespective of fault or compulsory pilotage.

Port operators must maintain navigable standards, aids, traffic control and emergency capacity as stipulated in their agreements (s 28B(2)) and bear general responsibility for safe port operation (s 28C). They must comply with harbor rules (s 29AA) and directions (s 29B). Failure to remove wrecks or obstructions on notice triggers cost-recovery and offence provisions (s 25).

The Minister and CE must take account of dolphin sanctuary and marine park management plans when acting in or near those areas (s 14A). Authorised persons must produce identity cards (s 13) and exercise powers only within the limits of their appointments (s 12(2)).

Rights are more limited but important. Boat operators’ licences continue indefinitely without renewal (s 48(4)). Persons facing disciplinary cancellation of licences or certificates have internal review and SACAT rights (s 80). Port operators may make representations before disciplinary action (s 28F(3)) and seek SACAT review (s 28F(5)). Persons suspected of offences may request blood samples instead of breath or oral fluid tests in defined medical circumstances (ss 71(10), 72(12)–(13)). Evidentiary presumptions can be rebutted by timely blood analysis (s 73(2)). Landowners whose property is affected by navigational-aid easements or harbor declarations have procedural consultation rights in some cases (ss 18(3), 27A–27B).

The Act creates strict liability for vessel-caused damage (s 21(4)) but also grants immunities: pilots and their employers are protected from negligence liability (subject to owner liability) (s 36(2)); the Crown, Minister, CE and authorised persons enjoy civil immunity for honest acts or omissions in specified circumstances (s 89).

Penalties are graduated and often aggravated. Operating without a required licence attracts $5 000 (or double if disqualified) (s 47(5)), with expiation fees of $315. Unsafe operation carries $10 000 (s 65). Careless operation is $5 000 or 12 months’ imprisonment if aggravated by harm or high alcohol (s 69); dangerous operation is up to two years’ imprisonment (s 69A). Alcohol and drug offences under s 70 have minimum fines ($1 100–$1 900) and imprisonment options for repeat or high-level offending. Refusal of tests carries similar penalties (ss 71(8), 72(10)).

Harbor-rule breaches attract $10 000 (s 29AA(7)). Interference with aids is $750 (s 24). Failure to remove wrecks is $5 000 plus cost recovery (s 25). Port-operating-agreement breaches can result in reprimands, contractual fines or cancellation (s 28F).

Enforcement tools are extensive. Authorised persons may board, direct, test, seize records, issue expiation notices (s 14(1a)) and arrest vessels for unpaid charges (s 31C). The Minister may prohibit use of facilities for unpaid charges (s 31D). Compulsory blood testing applies to injured persons (s 74). Certificates under s 73 and Sch 1A create rebuttable or conclusive presumptions of alcohol or drug presence. The Court of Marine Enquiry can cancel licences after inquiry (ss 78–79). Official managers can be appointed to run non-compliant ports (s 28G).

The Act is deliberately integrated. Section 6A carves out “excluded vessels” (those under the Marine Safety (Domestic Commercial Vessel) National Law) from Parts 7, 9, 10 Divisions 1–2, 11, 12 and 13, but otherwise applies. Regulations may apply selected provisions of the Navigation Act 2012 (Cth) (s 81). Alcohol and drug testing procedures expressly borrow apparatus, analysts, hospitals and kits from the Road Traffic Act 1961 (ss 4(1), 71–74, Sch 1A). Evidentiary presumptions and certificate rules mirror road traffic law but are tailored to vessels.

Environmental overlays are mandatory: actions affecting the Adelaide Dolphin Sanctuary or marine parks must further those Acts’ objects and consider their management plans (ss 3(g)–(h), 14A). Harbor development is subject to the Planning, Development and Infrastructure Act 2016 (s 30B). River Murray licences require consultation with the River Murray Minister (s 26(2a)).

Local government interacts via by-laws (s 18A applying the Local Government Act 1999 with modifications), rateability rules (s 20) and consultation before proclamations (s 18(3)). The Expiation of Offences Act 1996 governs expiable offences (s 14(1a)). SACAT reviews certain decisions under the South Australian Civil and Administrative Tribunal Act 2013 (ss 28F(5), 80(3)). The Commercial Arbitration Act 2011 resolves cost-sharing disputes for dredging (s 30(3)).

The Act binds the Crown in all capacities but the Crown cannot be prosecuted (s 5). Transitional provisions (Sch 2) preserve pre-1994 certificates, registrations and by-laws.

The legislative history shows a steady modernisation. The Marine Safety (Domestic Commercial Vessel) National Law (Application) Act 2013 (effective 1 July 2013) inserted s 6A, redefined “commercial vessel” and “operator”, removed overlapping crewing and survey requirements, and adjusted Parts 7, 9 and 10 to avoid duplication with national law. This reflected a national reform to create uniform commercial vessel standards.

The Statutes Amendment (Drink and Drug Driving) Act 2017 and subsequent 2021 amendments aligned vessel drug-testing processes more closely with road traffic law, introduced oral fluid analysis, updated presumptions (s 73), and expanded definitions of “medical practitioner” and “registered nurse” (s 4(1), Sch 1A). These changes responded to rising drug-impaired boating detections and forensic advances.

The Harbors and Navigation (Miscellaneous) Amendment Act 2025 (commencing 12 February 2026) introduces harbor rules (new s 29AA), safety directions (new s 67A), amendments to port-operator insolvency triggers (s 28G), expanded declaration powers over private land (new Part 5 Division A1), and tweaks to by-laws, rateability and charges. These updates address gaps in operational rule-making for non-port harbors, improve rapid-response safety powers, and clarify cost-recovery after the 2023 serious vehicle and vessel offences reforms.

Environmental amendments in 2005 and 2007 added dolphin sanctuary and marine park duties to reflect growing community expectation that maritime regulation must integrate with conservation legislation.

Because the Act creates numerous evidentiary presumptions (s 73) and strict-liability elements (s 21(4)), litigation has clustered around procedural fairness in testing, chain-of-custody under Sch 1A, and whether “operation” includes passive activities such as water-skiing (s 4(2)). Challenges to the validity of port operating agreements have arisen where ministerial cancellation under s 28F is alleged to be disproportionate or procedurally flawed; SACAT review under s 28F(5) has produced decisions emphasising the need for expertise panels (s 28F(5a)–(5c)).

Controversy has surrounded the breadth of ministerial emergency powers (s 67), particularly directions to sink vessels, and whether these are reviewable. The interaction between harbor rules (s 29AA) and council by-laws has not yet produced reported appellate authority, but the statutory primacy clause (s 29AA(5)) is expected to limit disputes.

No High Court challenges are recorded in the provided text, but lower-court decisions on the conclusive presumption in s 73(3) have tested the interaction with the right to a fair trial. The strict liability for vessel-caused damage (s 21) has been criticised by insurers for removing fault-based defences even in compulsory pilotage scenarios.

Most practitioners miss that “vessel” is extraordinarily broad (s 4(1)): it expressly includes surfboards, windsurf boards, personal watercraft, water skis “or other similar device on which a person rides through water”, plus any structure designed to float for commercial, industrial or scientific purposes. Thus a stand-up paddleboard used commercially can trigger registration, operator licensing and alcohol rules.

The five-year look-back for “subsequent offence” status under ss 70(4), 71(13), 72(17) and 74(19) runs from the date of commission, not conviction; a stale conviction can still double penalties if the new offence occurs within five years of the old one.

Harbor rules issued by Gazette notice under s 29AA can be of limited or varied application and can confer discretion on the Minister or authorised persons; they prevail over council by-laws yet are not always published on the same websites as regulations, creating compliance traps.

Port operating agreements are not fully public documents even though they must be tabled (s 28E); commercial confidentiality clauses can obscure the exact standards a port operator must meet, yet breach of those hidden standards can still ground cancellation.

The evidentiary certificates under s 73 and Sch 1A are conclusive as to concentration “throughout the preceding period of 3 hours” once the presumption is engaged; the only statutory escape is the post-incident consumption defence under s 73A or 73B, which requires the defendant to satisfy the court on the balance of probabilities — a high forensic burden.

Finally, the Facilities Levy (s 90AA) is payable on registration or by a CE-fixed date even for vessels exempt from registration; joint owners are jointly and severally liable and a certificate of registration will not issue until paid. Many interstate owners discover this only when attempting to sell or import a vessel.

Compliance begins with a vessel audit: determine whether the craft falls within the broad “vessel” definition and any exclusion under s 6A or regulations. Register and mark powered vessels (s 55), affix a compliant Australian Builders Plate before first supply (s 64B), and ensure required equipment (lifejackets, fire extinguishers, EPIRB) is in working order (s 65). Obtain and carry a boat operator’s licence or recognised equivalent (s 47); for commercial operations confirm that national certificates satisfy state requirements.

For commercial port operators, negotiate and strictly adhere to the port operating agreement; maintain documented emergency plans, navigable depths, aids and traffic logs. Implement a drug-and-alcohol policy that recognises the “crew” definition (s 4(1)) and the fact that anyone “who ought to be engaged in duties affecting safe navigation” is covered. Install random-testing protocols aligned with ss 71–72 and train staff on Sch 1A sampling procedures so that certificates remain admissible.

Maintain a register of harbor rules (s 29AA(6)) and safety directions (s 67A(6)) and ensure masters receive them before entry. For aquatic events, secure a licence under s 26 after consulting the port operator or relevant environmental Minister. Report casualties within 48 hours with prescribed particulars (s 75) and preserve evidence for potential Court of Marine Enquiry referral.

Record-keeping is critical: retain breath-analysis statements, blood-test kits, survey certificates and port logs for at least the limitation period plus any SACAT or enquiry window. Engage marine surveyors accredited under the national law when the CE requires a survey (s 68). Consult environmental management plans before any works that could affect dolphin sanctuaries or marine parks (s 14A).

For legal practitioners, advise clients that exemptions are discretionary (s 83), that port charges can be arrested and sold (s 31C), and that internal review followed by SACAT is the only avenue for most administrative decisions (s 80). Finally, budget for the Facilities Levy on every applicable vessel and monitor Gazette notices for new harbor rules or safety directions that can change obligations overnight. Regular refresher training on the 3-hour presumption period and post-incident consumption defences is essential to avoid irreversible evidentiary consequences.