Part 10Safety

Part 10—Safety Division 1—Safety generally 65—General requirements (1) A vessel must not be operated in the jurisdiction if— (a) the vessel is unsafe; (b) the vessel does not have the equipment or markings required by the regulations or the equipment is not in good working order; (c) the vessel is overloaded or is not properly loaded in accordance with the regulations. (2) If a vessel is operated in the jurisdiction contrary to subsection (1), the owner and operator are each guilty of an offence. Expiation fee: (a) if 1 or 2 items of equipment are involved—$105; (b) if 3 or 4 items of equipment are involved—$210; (c) if more than 4 items of equipment are involved—$315. 65A—Requirement to have emergency position indicating radio beacon (1) A vessel of a class specified by the regulations must not be operated in the jurisdiction unless it is carrying an emergency position indicating radio beacon that complies with the requirements specified by the regulations. (2) If a vessel is operated in the jurisdiction contrary to subsection (1), the owner and operator are each guilty of an offence. Expiation fee: $400. 66—Power to prohibit use etc of unsafe vessel (1) If the CE suspects, on reasonable grounds— (a) that a vessel is unsafe; or (b) that a vessel does not have the equipment or markings required by this Act or the regulations or the equipment is not in good working order; or (c) that a vessel is overloaded or is not properly loaded in accordance with the regulations, the CE may, by order, do 1 or more of the following: (a) prohibit the use of the vessel; (b) require the vessel to be taken out of the water as soon as is reasonably practicable; (c) require that the vessel not be returned to the water until any conditions specified in the order have been satisfied. (2) If an order is made under this section while the vessel is under way, the vessel must be brought as soon as possible to safe anchorage or be taken as soon as possible out of the water. (3) Except as provided in subsection (2), if a vessel is operated contrary to an order under subsection (1), the owner and operator of the vessel are each guilty of an offence. 67—Minister's power to act in an emergency (1) In an emergency, the Minister may take action for the purpose of avoiding or minimising danger to human life or damage to property. (2) The Minister may (for example) exercise one or more of the following powers: (a) take control of a harbor or harbor facility; (b) issue directions to the owner or operator of a vessel (including a direction to sink or destroy the vessel); (c) issue any other directions the Minister considers appropriate in the circumstances. (3) A person who— (a) obstructs the Minister in the exercise of powers under this section; or (b) fails to comply with a direction under this section, (4) A port operating agreement may contain provisions governing the exercise of the Minister's powers under this section in relation to the port. (5) This section applies to, or in relation to, an excluded vessel. 67A—Safety direction (1) The Minister may, by notice in the Gazette, issue a direction (a safety direction) imposing restrictions in a specified area within the jurisdiction if the Minister considers it appropriate to ensure— (a) the safety of the public; or (b) the protection of vessels or other property; or (c) the safety of users of waters within the specified area or occupiers of land adjoining those waters. (2) Without limiting the generality of subsection (1), a safety direction may impose restrictions in relation to 1 or any of the following: (a) the speed of vessels; (b) the use of vessels in specified areas; (c) navigation and other movement of vessels; (d) the use of vessels for particular purposes; (e) the mooring or anchoring of vessels; (f) undertaking specified activities; (g) any other matter the Minister considers appropriate in the circumstances. (3) A safety direction may apply to— (a) adjacent or subjacent land; or (b) structures situated on adjacent or subjacent land (except land and structures in private ownership). (4) A safety direction must set out the following: (a) the period during which the direction is to remain in force; (b) the specified area to which the direction relates; (c) the restrictions to be imposed by the direction; (d) any other matter that the Minister considers relevant. (5) A safety direction in force under this section applies despite any other by‑law made, or authorisation given, by a council under this Act or any other Act or law. (6) The Minister must cause a safety direction that is in force under this section to be made publicly available on a website maintained by the Minister. (7) A person must not, without reasonable excuse, fail to comply with a safety direction that is in force under this section. Division 2—CE may require survey 68—CE may require survey (1) If the CE is of the opinion that there are reasonable grounds to suspect that a vessel may be unsafe, that a vessel does not have the equipment or markings required by the regulations or that its equipment may not be in good working order, the CE may, by notice in writing to the owner of the vessel, require the owner to obtain a certificate from a surveyor accredited or otherwise recognised under the Marine Safety (Domestic Commercial Vessel) National Law certifying that— (a) the vessel is safe; and (b) the vessel has the equipment and markings required by this Act and the regulations and the equipment is in good working order. (2) A notice under this section may prohibit the use of the vessel until the certificate is obtained. (3) A person who— (a) fails without reasonable excuse to obtain a certificate of survey within the time allowed by a notice under this section; or (b) uses a vessel contrary to a notice under this section, Division 3—Operation of vessels 69—Careless operation of a vessel (1) A person who operates a vessel without due care for the safety of any person or property is guilty of an offence. Maximum penalty: (a) for an aggravated offence—12 months imprisonment; or (b) for any other offence—$5 000. (2) For the purposes of this section, an aggravated offence is— (a) an offence that caused harm to a person; or (b) an offence committed in any of the following circumstances: (i) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (ii) the offender was, at the time of the offence, operating the vessel in contravention of section 70(1). (3) If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. (4) In this section— harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935. 69A—Dangerous operation of a vessel A person who operates a vessel at a dangerous speed or in a dangerous manner is guilty of an offence. Maximum penalty: Imprisonment for 2 years. Division 4—Alcohol and other drugs 70—Alcohol and other drugs (1) If— (a) a person operates a vessel or is a member of the crew of a vessel who is, or ought to be, engaged in duties affecting the safe navigation, operation or use of the vessel; and (b) that person is so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vessel or of effectively discharging the duties that the person is or ought to be performing (as the case requires), (a) for a first offence— (i) a fine of not less than $1 100 and not more than $1 600; or (ii) imprisonment for not more than 3 months; (b) for a subsequent offence— (i) a fine of not less than $1 900 and not more than $2 900; or (ii) imprisonment for not more than 6 months. (2) If— (a) a person operates a vessel or is a member of the crew of a vessel who is, or ought to be, engaged in duties affecting the safe navigation, operation or use of the vessel; and (b) the prescribed concentration of alcohol is present in the blood of that person, (a) for a first offence— (ii) if the offence is a category 2 offence—a fine of not less than $900 and not more than $1 300; (iii) if the offence is a category 3 offence—a fine of not less than $1 100 and not more than $1 600; (b) for a second offence— (ii) if the offence is a category 2 offence—a fine of not less than $1 100 and not more than $1 600; (iii) if the offence is a category 3 offence—a fine of not less than $1 600 and not more than $2 400; (c) for a subsequent offence— (ii) if the offence is a category 2 offence—a fine of not less than $1 500 and not more than $2 200; (iii) if the offence is a category 3 offence—a fine of not less than $1 900 and not more than $2 900. (3) If— (a) a person operates a vessel or is a member of the crew of a vessel who is, or ought to be, engaged in duties affecting the safe navigation, operation or use of the vessel; and (b) a prescribed drug is present in the oral fluid or blood of that person, (a) for a first offence—a fine of not less than $900 and not more than $1 300; (b) for a second offence—a fine of not less than $1 100 and not more than $1 600; (c) for a third or subsequent offence—a fine of not less than $1 500 and not more than $2 200. (3a) Subject to subsection (3b), it is a defence to a charge of an offence against subsection (3) if the defendant proves that the defendant did not knowingly consume the prescribed drug present in the defendant's oral fluid or blood. (3b) Subsection (3a) does not apply if the defendant consumed the prescribed drug believing that the defendant was consuming a substance unlawfully but was mistaken as to, unaware of or indifferent to the identity of the prescribed drug. (4) In determining whether an offence is a first, second or subsequent offence for the purposes of this section, any previous prescribed alcohol or drug offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed. 71—Authorised person may require alcotest or breath analysis (1) An authorised person may require— (a) a person who is operating a vessel or who has operated a vessel; or (b) a person who is or was a member of the crew of a vessel that is being operated or has been operated, and who is or was, or ought to be or to have been engaged in duties affecting the safe navigation, operation or use of the vessel, to submit to an alcotest or a breath analysis, or both. (2) An authorised person may direct a person who is apparently in charge of a vessel to stop the vessel and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis. (3) A person must forthwith comply with a direction under subsection (2). Maximum penalty: $2 900. (4) An alcotest or a breath analysis to which a person has been required to submit under this section may not be commenced more than 8 hours after— (a) the person ceased to operate a vessel; or (b) the person was a member of the crew of a vessel who was, or ought to have been, engaged in duties affecting the safe navigation, operation or use of the vessel. (5) The performance of an alcotest or a breath analysis that has been required under this section commences when a direction is first given by an authorised person that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis. (6) A breath analysis may only be conducted by a person authorised by the Commissioner of Police to operate a breath analysing instrument. (7) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than 1 sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this Division and any other Act. (8) A person required under this section to submit to an alcotest or a breath analysis must not refuse or fail to comply with all reasonable directions of an authorised person in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of the authorised person. (a) for a first offence—a fine of not less than $1 100 and not more than $1 600; (b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900. (9) It is a defence to a prosecution under subsection (8) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (b) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person's right to request the taking of a blood sample under subsection (10); or (c) there was, in the circumstances of the case, good reason for the defendant to refuse or fail to comply with the requirement or direction. (10) If a person fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of an authorised person that a sample of the person's blood be taken by a medical practitioner or registered nurse, an authorised person must do all things reasonably necessary to facilitate the taking of a sample of the person's blood— (a) by a medical practitioner or registered nurse nominated by the person; or (b) if— (i) it becomes apparent to the authorised person that there is no reasonable likelihood that a medical practitioner or registered nurse nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner or registered nurse, by any medical practitioner or registered nurse who is available to take the sample. (11) A person is not entitled to refuse or fail to comply with a requirement or direction under this section on the ground that— (a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against the person; or (b) the person consumed alcohol after the person last operated a vessel or attempted to put a vessel in motion and before the requirement was made or the direction was given. (12) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless— (a) a sample of the person's blood was taken in accordance with subsection (10); or (b) the person made a request as referred to in that subsection, but— (i) an authorised person failed to facilitate the taking of a sample of the person's blood as required by that subsection; or (ii) a medical practitioner or registered nurse was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of a person's blood in accordance with subsection (10) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (13) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous prescribed alcohol or drug offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed. (14) If a person— (a) refuses or fails to comply with a direction under this section; or (b) submits to an alcotest and the alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person, there will be reasonable ground to suspect that the prescribed concentration of alcohol is present in the person's blood for the purposes of the exercise of any power conferred on a police officer (including a power of arrest) to prevent the person committing an offence by operating a vessel in contravention of this Division. (15) Subsection (14) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act. 72—Authorised person may require drug screening test, oral fluid analysis and blood test (1) If a person has submitted to an alcotest or a breath analysis as a result of a requirement under section 71, an authorised person may require the person to submit to a drug screening test. (2) If— (a) a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or (b) a person has submitted to an alcotest or breath analysis as a result of a requirement under section 71(1) that was made in prescribed circumstances, an authorised person may require the person to submit to an oral fluid analysis or a blood test. (3) If a person submits to an oral fluid analysis in compliance with a requirement made under subsection (2) but the person is unable to produce sufficient oral fluid for a sample to be taken, an authorised person may require that the person submit to a blood test. (4) An authorised person may give reasonable directions for the purpose of making a requirement under this section that a person submit to a drug screening test, oral fluid analysis or blood test. (5) A person must forthwith comply with a direction under subsection (4). Maximum penalty: $2 900. (6) A drug screening test, oral fluid analysis or blood test to which a person has been required to submit under this section may not be commenced more than 8 hours after— (a) the person ceased to operate a vessel; or (b) the person was a member of the crew of a vessel who was, or ought to have been, engaged in duties affecting the safe navigation, operation or use of the vessel. (7) The performance of a drug screening test, oral fluid analysis or blood test that has been required under this section commences when a direction is first given by an authorised person that the person concerned provide a sample of oral fluid or blood (as the case may be) to be used for the drug screening test, oral fluid analysis or blood test. (8) A drug screening test may only be conducted by— (a) a police officer; or (b) a person authorised by the Commissioner of Police to conduct such tests. (9) The regulations may prescribe the manner in which a drug screening test, oral fluid analysis or blood test is to be conducted. (10) A person required under this section to submit to a drug screening test, oral fluid analysis or blood test must not refuse or fail to comply with all reasonable directions of an authorised person in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of an authorised person. (a) for a first offence—a fine of not less than $900 and not more than $1 300; (b) for a subsequent offence—a fine of not less than $1 500 and not more than $2 200. (11) It is a defence to a prosecution under subsection (10) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (b) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) in the case of— (A) a drug screening test or an oral fluid analysis—the person's right to request the taking of a blood sample under subsection (12); or (B) a blood test—the person's right to request an oral fluid analysis under subsection (13); or (c) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (12) If a person of whom a requirement is made or to whom a direction is given under this section relating to a drug screening test or oral fluid analysis refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of an authorised person that a sample of the person's blood be taken by a medical practitioner or registered nurse, an authorised person must do all things reasonably necessary to facilitate the taking of a sample of the person's blood— (a) by a medical practitioner or registered nurse nominated by the person; or (b) if— (i) it becomes apparent to the authorised person that there is no reasonable likelihood that a medical practitioner or registered nurse nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner or registered nurse, by any medical practitioner or registered nurse who is available to take the sample. (13) If a person of whom a requirement is made or to whom a direction is given under this section relating to a blood test refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of an authorised person that an oral fluid analysis be conducted, an authorised person must do all things reasonably necessary to facilitate the conduct of an oral fluid analysis unless— (a) a requirement or direction under this section relating to a drug screening test or oral fluid analysis has been made of, or been given to, the person; and (b) — (i) the person refused or failed to comply with that requirement or direction on the ground of some physical or medical condition of the person and made a request under subsection (12) for a sample of the person's blood to be taken in accordance with that subsection; or (ii) the person was unable to produce sufficient oral fluid for a sample to be taken. (14) A person is not entitled to refuse or fail to comply with a requirement or direction under this section on the ground that— (a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against the person; or (b) the person consumed a prescribed drug after the person last operated a vessel or was on duty as a member of the crew of a vessel and before the requirement was made or the direction was given. (15) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section relating to a drug screening test or oral fluid analysis by reason of some physical or medical condition of the person unless— (a) a sample of the person's blood was taken in accordance with subsection (12); or (b) the person made a request as referred to in subsection (12), but— (i) an authorised person failed to facilitate the taking of a sample of the person's blood as required by that subsection; or (ii) a medical practitioner or registered nurse was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of the person's blood in accordance with subsection (12) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (16) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section relating to a blood test by reason of some physical or medical condition of the person unless— (a) an oral fluid analysis was conducted in accordance with subsection (13); or (b) the person made a request as referred to in subsection (13), but an authorised person failed to facilitate the conduct of an oral fluid analysis as required by that subsection; or (c) the taking of a sample of the person's oral fluid in accordance with subsection (13) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (17) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous prescribed alcohol or drug offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed. (18) If a person— (a) refuses or fails to comply with a requirement or direction under this section; or (b) submits to a drug screening test and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid, there will be reasonable ground to suspect that a prescribed drug is present in the person's oral fluid for the purposes of the exercise of any power conferred on a police officer (including a power of arrest) to prevent the person committing an offence by operating a vessel in contravention of this Division. (19) Subsection (18) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act. 72A—Schedule 1A further regulates blood and oral fluid sample processes