Jetties Act 1926

The Act casts a wide net across both public and private actors. Primary duty-bearers are masters and owners of vessels using public jetties. They must comply with regulations governing mooring (s. 4(1)), report arrival, produce certificates of registry, supply manifests and cargo inventories, and give notice of unloading (s. 4(7)). Shippers must furnish accurate accounts of goods (s. 4(8)). Consignees and consignors may be compelled to use a public jetty when one is available (s. 4(6)). All persons are prohibited from lighting fires near wooden public jetties (s. 10), fastening objects to public navigational aids (s. 11), and, if they are vessel owners or negligent masters, from causing damage to jetties (s. 12).

Private jetty owners and occupiers are directly affected by the prohibition in s. 8 and the removal regime in s. 8A. Any person who constructs, uses or maintains an unlicensed private jetty commits an offence punishable by $12,000 and faces compulsory removal at their cost. The definition of "private jetty" is deliberately broad: any jetty used or maintained by a non-government person.

Applicants for licences under s. 7, and existing licensees, are subject to the discretionary power of the chief executive officer and to the planning approval gateway in s. 7(3). Aggrieved applicants have a statutory right of review by the State Administrative Tribunal (s. 7A). Licensees whose licences fall within the s. 13 Table are now subject to oversight by the relevant port authority (Pilbara Ports Authority, Kimberley Ports Authority, Mid West Ports Authority or Southern Ports Authority) rather than the original grantor. They must comply with port authority directions that facilitate the port authority's compliance with the Port Authorities Act 1999 (s. 13(3)(c)).

Port authorities themselves are affected in a negative sense by s. 7AA: they cannot grant or receive Jetties Act leases or licences for jetties inside their ports. Conversely, once a s. 13 specification day occurs, the relevant port authority steps into the shoes of the former grantor and acquires extended functions.

Government officers and the Department are both empowered and constrained. The chief executive officer and delegated officers exercise licensing, regulatory and charging functions. The Minister holds removal powers under s. 8A and may be authorised by the Governor to acquire private jetties, or to lease, close or remove public ones (s. 6). The Act expressly applies Part 9 of the Land Administration Act 1997 to such acquisitions, treating a jetty as though it were land required for a public work.

Local governments may have regulations applied to jetties under their control, but those regulations are subordinate to local laws made under the Local Government Act 1995 (s. 5(1)(b)).

Railway and Public Transport Authority jetties are generally excluded from the regulations unless an Order in Council is made (s. 5(1)(c)–(4)).

Finally, the general public is affected whenever it interacts with public jetties: traffic may be regulated, order preserved by appointed officers (s. 4(3)), and government liability for lost or damaged goods is capable of being limited or excluded by regulation (ss. 4(10)–(12)).

Key duties include the obligation on vessel masters under regulations made pursuant to s. 4(7) to report arrival, produce registry certificates, supply manifests and give unloading notices. Shippers must provide full and true accounts (s. 4(8)). Private jetty owners must obtain and comply with a licence or lease (s. 8). All persons must refrain from prohibited conduct in ss. 10 and 11. Vessel owners and masters bear strict responsibility for damage (s. 12(1)).

Rights are more limited. Licensees enjoy the right to construct or maintain a jetty in accordance with the granted instrument, subject to the planning gateway. Aggrieved applicants have a statutory merits review right in the SAT (s. 7A). Owners of goods may claim against the Government only within prescribed times and subject to regulatory exclusions of liability for insufficient packing, absence of receipt, or late claim (ss. 4(10)–(12)). Licensees listed in the s. 13 Table retain their pre-existing rights except to the extent they agree to variation (s. 13(3)(d)–(e)), and retain the right to request or agree to renewal.

The Crown retains the right to authorise acquisition of private jetties, to close or remove public ones (subject to the Marine and Harbours Act 1981), and to recover removal costs as a first-ranking charge (s. 8A(4)). The Minister may sell materials and pass good title to a bona fide purchaser (s. 8A(5C)).

The Act creates a relatively sparse but blunt penalty regime. The default offence under s. 8 for unlicensed private jetty construction, use or maintenance carries a flat $12,000 fine. Identical maximum fines apply to lighting fires near public jetties (s. 10), fastening objects to navigational aids (s. 11), and breach of regulations made under ss. 4(15), 9 or 12(2). Regulations may impose penalties not exceeding $12,000.

Enforcement is primarily administrative. The Minister's power to issue and enforce removal notices under s. 8A is the most direct tool; costs become a debt secured by a statutory charge that overrides other claims and engages Commonwealth PPSA priority rules. Sale of materials provides a self-funding mechanism, with surplus proceeds paid to the owner or, if untraceable, to the Consolidated Account (s. 8A(5)).

Civil liability for damage to jetties is imposed directly by s. 12(1) without need for regulation. Government charges (berthing, wharfage etc.) are recoverable through the regulatory framework created under s. 4(9). Reviews of licensing decisions lie to the SAT rather than the courts in the first instance (s. 7A).

The Jetties Act is deliberately interwoven with a constellation of other statutes. Most prominently, s. 7AA and the entirety of ss. 13–14 articulate its subordinate relationship to the Port Authorities Act 1999. Once a jetty falls inside a port boundary, the Jetties Act (except the transitional provisions) simply does not apply.

Planning controls are elevated above licensing: approvals under the Swan and Canning Rivers Management Act 2006, Metropolitan Region Scheme or Swan Valley Planning Scheme are prerequisites and prevail over licence conditions (s. 7(3)–(4)). Acquisition of private jetties is governed by the compensation and procedural regime in Part 9 of the Land Administration Act 1997 (s. 6(2)).

Regulations may incorporate by reference codes and standards from Standards Australia, British Standards Institution, the Association of Australian Port and Marine Authorities or similar bodies (s. 4A). They may also apply, with modifications, subordinate legislation made under Commonwealth or UK Acts.

Railway jetties are excluded unless brought in by Order in Council (s. 5(1)(c)–(4)). Local government jetties are subject to regulations but only to the extent they do not conflict with local laws made under the Local Government Act 1995 (s. 5(1)(b)).

The Personal Property Securities Act 2009 (Cth) is engaged by s. 8A(5A) to give the Minister's removal-cost charge the priority contemplated by s. 73(2) of that Act. Transitional provisions in s. 13 expressly preserve rights under Government Agreements Act 1979 agreements.

The Act is therefore not a standalone code but a specialised overlay that defers to port, planning, land acquisition, and personal property security legislation while supplying operational detail in the interstices.

The most significant recent changes were effected by the Ports Legislation Amendment Act 2019 (assented 26 February 2019, commenced 27 February 2019). That Act inserted s. 7AA to remove doubt that the Jetties Act does not apply inside port boundaries and that leases or licences cannot be granted there. It also inserted the elaborate s. 13 transitional regime and the s. 14 validation provision. These changes were required because a number of historic licences had been granted under the Jetties Act in respect of jetties that, on a strict reading of port boundaries, may not have been within the Act's reach. Rather than risk invalidity litigation, the legislature chose to validate those instruments retrospectively (s. 14) and to transfer ongoing administrative responsibility to the four port authorities named in the Table.

Consequential amendments were made to ss. 3, 4, 5, 6, 8, 8A, 9, 10, 11 and 12 to update terminology, remove spent provisions, and align penalties with contemporary penalty unit values (though the maximum remains $12,000). The Swan Valley Planning Act 2020 made a further minor amendment to s. 7 to include the Swan Valley Planning Scheme.

These changes reflect a policy of rationalising overlapping maritime and port legislation, eliminating historical anomalies, and ensuring that commercial loading facilities critical to the resources industry (particularly in the Pilbara) rest on an unquestionable legal foundation while transferring day-to-day oversight to the specialist port authorities.

The printed Act itself contains no reported court challenges. However, the structure of the legislation reveals areas of latent controversy. The breadth of the definition of "jetty" in s. 3—expressly including floating structures and ramps but excluding vessels that are platforms under the Western Australian Marine Act 1982—invites boundary disputes. The retrospective validation effected by s. 14(2) could, in theory, engage constitutional or administrative law arguments about acquisition of property on just terms or interference with vested rights, although the provision is carefully drafted to operate only upon prescription by regulation and to preserve Government agreements.

The interaction between s. 8A(4)–(5C) and the Personal Property Securities Act 2009 (Cth) has not been tested in the reported Western Australian cases, but the express declaration under s. 73(2)(a) of the Commonwealth Act suggests parliamentary awareness of potential priority contests with secured creditors.

Section 7A's conferral of jurisdiction on the State Administrative Tribunal for licensing reviews replaced an earlier merits review mechanism; transitional issues arising from the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 are noted in the "Other notes" to the compilation table and could still affect older decisions.

The most politically sensitive element is undoubtedly the s. 13 Table, which lists licences granted to major resources companies (Hamersley Iron, Woodside, BHP, Dampier Salt, Mermaid Marine) and to local governments and boating clubs. Any future specification of a day for items 1–12 requires the written concurrence of the Agreements Minister because those licences relate to Government agreements. This layered consent mechanism reflects the political sensitivity of altering long-term resources infrastructure arrangements.

Most practitioners assume that a licence granted decades ago under the Jetties Act remains valid indefinitely. Section 14 reveals the opposite risk: if the jetty lies inside a port boundary, the instrument may have been granted without power. Only once the relevant regulations prescribe that instrument does s. 14 spring into operation to deem it always to have been valid. Until that prescription occurs, title and rights remain technically vulnerable.

Another trap lies in the interaction between planning approvals and licensing. Even if the CEO is minded to grant a licence under s. 7, he or she cannot do so until Swan River or metropolitan planning approval has been obtained, and the licence conditions cannot contradict that approval. Developers who obtain planning approval first and then assume a Jetties Act licence will follow as of right are mistaken; s. 7(4) makes the licence mandatory but does not guarantee its grant on the applicant's preferred terms.

The s. 8A removal power is surprisingly potent. The Minister need only form the view that a private jetty is unlicensed and serve (or publish) a seven-day notice. Cost recovery is secured by a first-ranking charge that survives sale to a good-faith purchaser. Because the charge is created by statute and expressly tied to the Commonwealth PPSA, it can prevail over earlier registered security interests if the procedural requirements of s. 73(2) are met.

Finally, the transitional provisions in s. 13(3)(c) impose a deemed condition on every listed licence once a specification day occurs. Licensees can be directed to do (or refrain from doing) anything that assists the port authority to meet its own obligations under the Port Authorities Act 1999. This is a significant new burden that many historic licensees may not have appreciated when the 2019 Act passed.

Compliance begins with classification. Determine whether the jetty is inside a port authority boundary (s. 7AA). If it is, the Jetties Act licensing route is unavailable; approach the relevant port authority directly. If it is outside, apply to the chief executive officer under s. 7, ensuring that all necessary planning approvals under the Swan and Canning Rivers Management Act 2006 or relevant planning schemes have first been obtained.

Any person proposing to construct or maintain a private jetty must obtain a written licence or lease before commencing works or use. The application should anticipate the conditions the CEO is likely to impose, particularly those required to align with any planning approval. Once granted, the licence or lease must be kept current; renewal is not automatic except for listed licences where the licensee requests or agrees to renewal after the s. 13 specification day.

Operators of vessels using public jetties must maintain systems to comply with all regulations made under s. 4, including timely reporting, manifest production, and payment of all dues and charges. Records should be kept for the period prescribed for claims against the Government, because s. 4(11)–(12) permits regulations to extinguish liability for late claims.

Owners of existing private jetties should audit their title documents. If the instrument was granted before 2019 and the jetty is within a port boundary, monitor the making of regulations under s. 14. Once prescribed, the instrument is deemed always to have been valid, but until then residual doubt remains.

To avoid s. 8A removal action, never assume that long acquiescence by government equates to a licence. If in doubt, seek confirmation in writing or apply for a fresh licence. Should a removal notice be received, immediate legal advice is essential; the seven-day period is short and the cost-recovery charge arises automatically upon removal.

Compliance professionals should maintain a register of all jetties under their client's control, cross-referenced against the s. 13 Table and against current port boundaries. For resources companies, the requirement to obtain the Agreements Minister's concurrence before specification of days for the first twelve licences in the Table should be factored into any negotiation with government.

Regular review of regulations made under the Act, and of any incorporated standards under s. 4A, is necessary because the regulation-making power is expressed in the widest possible terms. Finally, damage prevention protocols should be embedded in vessel operating procedures to avoid the strict liability imposed by s. 12(1) on both owner and master.