Lights (Navigation Protection) Act 1938

The Act directly affects any person who owns, occupies, or has charge of a light that is visible from a port, harbour, or navigable waterway anywhere in Western Australia. That includes:

• Residential and commercial landowners near the coast, estuaries, or rivers used by shipping - particularly those with security floodlights, garden lighting, verandah lights, or illuminated signage.
• Local governments that operate street lights, park lighting, sports field floodlights, or public amenity lighting in areas adjacent to navigable waters.
• Industrial and infrastructure operators with illuminated structures (e.g. fuel terminals, wharves, crane lighting, flare stacks, billboards) that could be visible to vessel operators.
• Port authorities (e.g. Fremantle Ports, Pilbara Ports Authority) which act as port managers and must decide whether to issue notices, and which may also be affected if they operate lights that interfere with another port’s harbour lights.
• Shipowners, insurers, and maritime lawyers, who gain a statutory cause of action (deemed nuisance) against non‑complying light owners when vessel damage occurs (s 5). This effectively privatises enforcement by giving private rights to sue, supplementing the criminal penalties.
• Vessel operators and pilots, who are the intended beneficiaries of reduced light interference, but who also bear the cost of any collision or navigation error if a light is not suppressed.

The Act creates a compliance burden that is not trivial. A notice can require immediate cessation of a light, or a costly modification (e.g. screening, colour change, repositioning). There is no statutory right to be heard before the notice is issued, and no appeal mechanism in the Act itself (although judicial review on administrative law grounds is theoretically available). The costs of compliance - or of contesting the notice - fall entirely on the private party. The port manager bears none of the cost of modifying the light. If the owner fails to comply, the port manager can enter the land and do the work, then recover the expense as a debt (s 4(2)), which may include not only the direct cost of shielding or removing the light but the port manager’s administrative and supervisory costs.

Local governments, as “owners” of street lights, are particularly exposed. A single notice could require a council to retrofit, screen, or extinguish dozens of street lights along a coastal road. The cost may run into tens of thousands of dollars, with no government subsidy. Conversely, the Act may benefit neighbouring ports: if Fremantle Ports orders a council to dim lights that interfere with the harbour’s navigation aids, the council may bear the cost while the port and its commercial users reap the safety benefit. This is a classic problem of concentrated costs and diffuse benefits, paid for by ratepayers.

The central duty is imposed by s 3(3): it “shall be the duty of the owner, occupier or other person served with a notice under subsection (1) to comply with such notice”. This duty is not contingent on the correctness of the port manager’s opinion. The notice may require the owner to:

• extinguish the light (permanently or for specified hours);
• remove the light entirely or move it to another position;
• modify the light or alter its character or colour, or screen it in a manner directed;
• refrain from using the light entirely or for a stated period or during stated hours;
• do or refrain from doing any other act in relation to using the light as the port manager directs (s 3(1)(a)-(e)).

The specificity of the direction is left entirely to the port manager. There is no requirement that the direction be the least restrictive means, nor that alternative solutions be considered.

A person served with a notice also has a duty not to obstruct the port manager who enters to carry out the notice in default (s 4(3)). Obstruction can occur by actions such as locking gates, refusing access, or blocking works.

On the rights side, an owner served with notice has:

• The right to a defence of reasonable cause if prosecuted for non‑compliance, but the burden of proof is on the owner (s 3(4)).
• No statutory right to a hearing, appeal, or compensation. The Act does not provide for a merits review. The only avenue is judicial review on procedural fairness or jurisdictional error grounds, which is costly and uncertain.
• A potential cause of action if the port manager causes “unnecessary damage” when entering premises (s 4(1) says the port manager must do “no unnecessary damage”). This may sound in trespass or negligence, but the Act does not specify a remedy.
• The benefit of the s 6 saving provision: a port manager who fails to issue a notice or fails to enforce it is not liable to the owner for that omission. But that section does not create any positive right for the light owner.

Shipowners gain a significant right under s 5: if a notice was served but not complied with, and the non‑compliance results in a vessel being damaged because the light was mistaken for, obscured, conflicted with, or interfered with a harbour light, the non‑compliance “shall be deemed to be a tort in the nature of a nuisance committed by such owner, occupier or person”. This statutory tort removes the need for the shipowner to prove common law nuisance (which requires showing unreasonable interference with a right of navigation). It also eliminates any defence that the light existed before the harbour light or that the owner had a prior right. The trigger is simply that a notice was served and not complied with.

The port manager also has the right to delegate powers to any person (s 8), and the delegate is taken to act in accordance with the delegation unless the contrary is shown (s 8(4)). This allows the power to be exercised by a junior officer, potentially increasing the risk of poorly considered notices.

The Act creates two criminal offences:

• Failure to comply with a s 3 notice (s 3(4)): maximum fine $12,000, plus a daily penalty of $600 for each day the non‑compliance continues. For a business, $12,000 is a modest sum, but the daily penalty can quickly accumulate. A restaurant with an ornamental verandah light that remains on for 30 days past the compliance date faces a potential $30,000 in penalties if prosecuted for each day.
• Obstructing the port manager or their delegate when entering to carry out a notice (s 4(3)): maximum fine $5,000. This is a straightforward summary offence.

Both offences are punishable on conviction in a court of summary jurisdiction. The Act does not specify whether the penalty applies per notice or per contravention; given the daily penalty provision, the latter reading is likely.

Prosecutions can be commenced by a person authorised by the port authority (for port authority‑controlled ports) or by the chief executive officer (for other ports and harbours) (s 7). There is no requirement for the prosecutor to be a police officer or a government lawyer, meaning that the port authority’s own compliance staff can bring proceedings. This encourages enforcement but also raises the risk of over‑enforcement where port managers have financial or operational incentives to suppress private lights.

Enforcement beyond criminal law is potent. The port manager can enter land without a warrant (s 4(1)) and take “effectual means” to carry out the notice. The only constraint is “doing no unnecessary damage”. This is a private law right of entry, but it is backed by the criminal offence of obstruction. There is no requirement for the port manager to give further notice of entry; the original notice specifying a compliance date suffices. This means that, after the compliance date expires, the port manager can appear at any time (including outside business hours) and physically alter or extinguish the light.

Civil liability under s 5 is perhaps the most punitive mechanism. A non‑complying owner may be sued for damages by a shipowner whose vessel is damaged. There is no cap on damages. In a serious collision, damages could cover the vessel’s repair or total loss, salvage costs, pollution cleanup, and consequential business interruption. The shipowner need only prove the non‑compliance (which is a strict liability element) and that the damage resulted from the light’s interference with a harbour light. The defence of contributory negligence is not excluded, but the statutory deeming of the non‑compliance as a tort operates as a rebuttable presumption of liability.

Regulations made under s 9(2) can create additional offences with penalties up to $12,000. No regulations have been made under the Act to date (based on the compilation table provided), but the power exists, giving the executive a blank cheque to impose new duties without further legislative amendment.

The Act sits within a web of Western Australian maritime and port legislation. It cross‑references the Shipping and Pilotage Act 1967 (for definitions of “harbour” and “port”) and the Port Authorities Act 1999 (for the definition of “port” and the identification of the port manager for authority‑controlled ports). The definition of “port manager” for non‑authority ports points to the “chief executive officer” of the department, which is currently the Department of Transport (as defined in s 2).

Local government law intersects because a street light owned by a local government is treated as owned by the council (s 2 definition of “owner”). The Act does not exempt public lighting from its reach. This can create tension with the Local Government Act 1995 (WA) obligations to provide street lighting for public safety and amenity. A port manager’s notice to extinguish or screen a street light could conflict with a council’s duty of care to road users. There is no dispute resolution mechanism in the Act; the council must comply or face prosecution and civil liability.

Environmental and planning laws may also be relevant if a notice requires removal or modification of a light that is part of a heritage‑listed building or a structure subject to a development approval. The Act contains no saving for heritage considerations. A port manager could order the removal of a heritage‑listed lighthouse lamp that is not itself a “harbour light” but that interferes with an adjacent navigational light. The owner would face a conflict between complying with the notice and breaching heritage protection laws.

Common law nuisance and negligence are directly modified by s 5, which creates a deemed tort. This provision removes the need for a plaintiff to prove that the light owner’s conduct was unreasonable or that the light constituted a private or public nuisance at common law. The deeming provision applies only if a notice has been served and not complied with. If no notice has been served, the common law continues to apply. This creates an odd bifurcation: a light that interferes with navigation may not be a nuisance at common law if it long predated the harbour light, but once the port manager issues a notice, non‑compliance automatically becomes a nuisance.

Criminal law interacts through the offence provisions. A conviction under s 3(4) or s 4(3) does not preclude a civil action for damages; the two are separate. The reverse‑onus provision for the “reasonable cause” defence (s 3(4)) may engage the Criminal Code (WA) or common law principles on the burden of proof, but no case law is cited.

Delegated legislation: The Governor may make regulations “prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act” (s 9(1)). This is a broad Henry VIII clause, permitting delegated legislation to create offences and to specify matters not currently detailed in the Act, such as notice periods, forms, or technical standards for light modification.

The Act received assent on 1 December 1938 and commenced the same day. Its first substantive amendment came via the Decimal Currency Act 1965 (No. 113 of 1965), which converted the original penalty from pounds to dollars. The amendment adjusted the fine under s 3(4) and s 4(3) from £100 to $200 (a direct conversion under the Decimal Currency system), though the current $12,000 and $5,000 figures result from later changes.

The Acts Amendment (Department of Transport) Act 1993 (No. 47 of 1993) Pt 8 restructured definitions: it introduced the term “chief executive officer” and “department”, and amended s 7 to allow prosecutions by persons authorised by a port authority. This reflected the creation of the Department of Transport as the administering agency. The Local Government (Consequential Amendments) Act 1996 (No. 14 of 1996) s 4 amended the definition of “owner” to include “local government” in relation to street lights, bringing councils squarely within the Act’s reach.

The most recent substantial amendment was the Ports Legislation Amendment Act 2019 (No. 2 of 2019), Pt 3, which:

• Raised the penalty under s 3(4) from $200 to $12,000 (and inserted a daily penalty of $600);
• Raised the s 4(3) obstruction penalty from $200 to $5,000;
• Inserted a new s 8 on delegation (previously the Act had no provision for delegation of the port manager’s powers);
• Inserted a new s 9 on regulation‑making power;
• Made amendments consequential on the Port Authorities Act 1999 and the Shipping and Pilotage Act 1967 (replacing references to former bodies).

The 2019 amendments transformed the Act from a low‑stakes regulatory instrument into a genuinely potent coercive tool. The $12,000 fine and $600 daily penalty represent a more than 60‑fold increase from the original dollar amount (allowing for inflation, the increase is still substantial). The inclusion of a daily penalty for non‑compliance makes the Act punitive for ongoing breaches. The addition of a regulation‑making power grants the executive flexibility to expand the Act’s scope without parliamentary scrutiny.

There is no indication in the compilation table of any litigation‑triggered amendments. The Act has been re‑printed twice (2004 and 2019). Compilation notes indicate that marginal notes referring to legislation of other jurisdictions have been omitted.

The source text does not mention or cite any case law. This may be because the Act has rarely been litigated in the 85+ years since its enactment. Possible reasons include: (a) the small number of notices ever issued; (b) low penalty levels that deterred formal challenge before 2019; (c) the expense of judicial review outweighing the cost of compliance; or (d) the existence of administrative arrangements that resolve disputes without litigation. The absence of reported cases does not mean the Act is unused; it may indicate that port managers and light owners reach informal arrangements or that owners routinely comply to avoid the risk of liability under s 5.

The 2019 amendments - especially the high penalties and the new regulation‑making power - may generate future litigation. An owner who faces a $12,000 fine plus $600 per day may now have an incentive to test the validity of a notice on grounds of jurisdictional error, bad faith, or unreasonableness. Similarly, the s 5 deemed tort is likely to be tested in court for the first time. A shipowner suing a non‑complying light owner will need to establish causation linking the light’s interference to vessel damage. Questions may arise as to whether the light was a “substantial cause” or merely a contributing factor, and whether the shipowner’s own negligence (e.g., failing to keep a proper lookout) breaks the chain.

The reverse‑onus provision for “reasonable cause” (s 3(4)) may also attract constitutional scrutiny under the presumption of innocence, though state summary offence laws with reverse onuses have generally been upheld where the burden is legal or persuasive (as opposed to evidential). No High Court challenge is recorded.

Given the silence in the source, one cannot assume any particular judicial interpretation. The Act remains largely untested, and its provisions (especially the broad “opinion” power in s 3(1) and the deeming provision in s 5) are ripe for future legal contest.

No appeal mechanism: The Act provides no right to apply for a review of the port manager’s decision to issue a notice. A light owner cannot object, request a hearing, or ask for a variation on grounds of cost or alternative solutions. The only recourse is to disobey and risk prosecution (raising the “reasonable cause” defence) or to seek judicial review (which requires proving an administrative law error, not just that the decision was harsh or inconvenient). Given that the port manager’s opinion is phrased in subjective terms (“in the opinion of the port manager”), a court is likely to show significant deference.

The definition of “light” is extraordinarily broad: It includes not only the light itself but “the glow from any such light”. This captures ambient or reflected light that is not aimed at the water. A security light that is directed downward but creates a glow on a nearby building could be caught. The definition also covers street lights, which are typically pointed downward but still produce a glow that might diffuse across a harbour.

Service by affixing: The port manager may serve a notice by “affixing it in some conspicuous place on or near the place or premises” (s 3(2)). If the property is vacant or the owner is overseas, the notice may go unseen until the compliance period expires. The owner is then guilty of an offence unless they can prove reasonable cause (which is difficult if the notice was never seen). There is no requirement that the port manager first attempt personal service.

Reverse onus for reasonable cause: The burden of proving reasonable cause lies on the defendant (s 3(4)). This is a legal burden, not merely an evidential one. In a prosecution, the defence must satisfy the court on the balance of probabilities that there was reasonable cause for non‑compliance. Possible examples of reasonable cause might include illness, unavoidable absence, or inability to access the property, but the Act gives no guidance.

No compensation for compliance costs: An owner who complies with a notice - even one requiring expensive modification or removal - receives no compensation. The Act contains no provision for payment by the port manager for the cost of screening, relocation, or extinguishment. This is a pure burden on the private party. If the port manager enters and does the work, the owner bears the full cost as a debt recoverable by legal action (s 4(2)). The owner’s only protection is that the port manager must do “no unnecessary damage” when entering (s 4(1)), but the cost of necessary works is not capped.

The port manager has no obligation to act: Section 6 explicitly provides that the port manager’s failure to issue a notice or to enforce a notice does not make the port manager liable for damage to vessels. This means a shipowner cannot sue the port manager for negligently failing to suppress a dangerous light. The only way to hold anyone accountable is to sue the light owner under s 5 (if a notice had been served) or at common law. This asymmetry protects the state but not private parties.

Potential double‑exposure for the light owner: An owner who receives a notice and fails to comply faces three possible consequences: (a) criminal prosecution and fines up to $12,000 plus daily penalties; (b) a civil suit under s 5 by any vessel owner; and (c) the port manager entering the land and recovering the cost of works. None of these are mutually exclusive. The owner cannot avoid civil liability simply by paying the fine.

Street lights are treated as private lights: Local governments are deemed “owners” of street lights (s 2). This means a council operating a street light near a port can be ordered to extinguish it. The Act does not consider whether the light is required for public safety or whether alternative lighting could be installed. The council’s only defence would be “reasonable cause”, which is unlikely to succeed if the alternative is simply dimming or shielding.

No sunset on notice directions: A notice under s 3 can require an owner to “refrain from using … the light either entirely or for such period or during such hours as the port manager may direct” (s 3(1)(d)). This direction can be permanent - there is no requirement that it be reviewed or lapse after a certain period. The light may be effectively permanently suppressed without ongoing monitoring by the port manager.

Compliance with the Act begins the moment a notice under s 3 is received. There is no grace period beyond the time specified in the notice. The recipient should:

1. Confirm the notice is valid: Check that it is in writing, signed by or on behalf of the port manager (or a delegate authorised under s 8), and specifies the time within which compliance is required. The notice must identify the light and state what is required (extinguish, remove, modify, etc.) and how. If the notice fails to specify a time, or is ambiguous about the required action, the recipient should seek written clarification from the port manager. Do not assume ambiguity renders the notice invalid; a court may imply a reasonable time.

2. Consider the merits of compliance versus challenge: Given the absence of an internal appeal, the only viable challenge is judicial review. That requires proving the port manager’s opinion was not reasonably open, that the decision was made for an improper purpose, or that procedural fairness was denied. Judicial review is expensive and slow and does not automatically stay the compliance deadline. A prudent owner should either comply first and then seek a refund (unlikely) or seek an undertaking from the port manager not to prosecute while review is pending. The Port Manager may refuse such an undertaking.

3. Assess “reasonable cause” for delay: If compliance within the specified time is genuinely impossible (e.g., electrician unavailable, part needed overseas), document all steps taken and request an extension in writing. While the Act does not require the port manager to grant extensions, a written request and refusal may assist in establishing reasonable cause if prosecuted. The burden of proof is on the owner, so contemporaneous records are essential.

4. Physical compliance:

   • Extinguish: Turn off the light and disconnect power. Ensure it cannot be re‑lit automatically.
   • Remove: Take down the light fixture and wiring. If the light is on leased premises, obtain landlord consent.
   • Modify/screen: Follow the port manager’s direction. If the direction is imprecise (e.g., “screen” without specifying material or extent), seek written instructions to avoid later claims of non‑compliance.
   • Refrain: Implement a timer or manual switch and ensure all users understand the restriction. For a street light, this may require a council to install a photocell or remote switch to turn off at certain hours.
   • Other acts: The port manager can direct any act (s 3(1)(e)). Comply exactly, or again seek written specification.

5. Documentation: Keep copies of the notice, all correspondence, receipts for compliance work, photographs before and after, and records of any discussions. This is critical for defending a future prosecution or civil suit.

6. Avoid obstruction: If the owner fails to comply and the port manager enters to do the work, the owner must not physically prevent or hinder the entry or works. Doing so is a separate offence with a $5,000 fine (s 4(3)). Remove any padlocks or barriers, and do not interfere with workers. The owner can later dispute the reasonableness of the costs incurred, but that is a debt recovery matter, not an obstruction issue.

7. Insure: Because s 5 creates strict liability for damages to vessels if a notice was served but not complied with, the owner should ensure that their public liability insurance policy covers this statutory tort. Many standard policies exclude liability arising from a failure to comply with a statutory notice. Seek a specific endorsement.

8. For local governments: Conduct an audit of all street lights, park lights, and other public lighting within a 5 km radius of any port or harbour (the Act does not specify a distance, but coastal areas are at risk). Proactively assess whether any of these lights could be seen from the water and might interfere with navigational aids. Consider retrofitting with shields or downward‑directional fixtures to minimise glow. Enter into consultation with the relevant port manager before a notice is issued. A cooperative approach may lead to a less onerous outcome.

9. Implementation risk: The Act’s broad discretion and lack of procedural safeguards mean that compliance may be required for lights that have never caused any actual confusion. The owner must balance the cost of compliance against the risk of prosecution and civil liability. Because the port manager can recover costs if they do the work, and because the daily penalties accumulate, early compliance is almost always cheaper than resistance.

10. Regulations: Check periodically whether any regulations have been made under s 9. If the Governor prescribes new requirements (e.g., mandatory shielding for all lights above a certain wattage within a port‑adjacent zone), the compliance burden may become proactive rather than reactive.