Marine Act 1981

The Act adopts several foundational concepts defined in section 7. "Northern Territory waters" includes coastal waters under the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) and any waters within the Territory (tidal or non-tidal, fresh or salt, permanent or temporary, natural or artificial). "Vessel" takes its meaning from the Marine Safety (Domestic Commercial Vessel) National Law, but the Act uses the term extensively. An "unsafe ship" is defined for Part 4 Division 4 as a vessel unfit to proceed on its proposed voyage without danger to human life by reason of defective condition, improper loading, undermanning, or any other reason (s 96). This concept applies only to recreational vessels. "Dangerous goods" means goods listed in the International Maritime Dangerous Goods Code (s 7). "Marine incident" is defined exhaustively in section 7 and includes death, injury requiring medical treatment, loss of vessel, collision, grounding, sinking, flooding, capsizing, fire, loss of stability, structural failure, near-collision situations, events resulting in death or injury or loss of person from vessel, vessel becoming disabled, fouling of pipelines or submarine cables, damaging navigational aids, and prescribed incidents. The Act distinguishes between "recreational vessel", "pleasure craft", "hire-and-drive vessel", "fishing vessel", "domestic commercial vessel", "off-shore industry mobile unit", and "off-shore industry vessel". A "declared service" under Part 5 is a commercial operation declared by the Minister by Gazette notice as requiring a licence (s 131). The Director (the Chief Executive Officer of the relevant agency) holds extensive powers including issuing directions on hazardous goods, dealing with wrecked vessels, detaining vessels, and approving structures. "Shipping inspector" is a person appointed by the Minister (s 8); police officers automatically have those powers (s 8A). The "Uniform Shipping Laws Code" is adopted by reference in regulations and can be amended from time to time by the Ministerial Council upon Gazette notification (s 196). "Certificate" includes certificates of operation, survey, competency, and recognised certificates under the Marine Safety National Law. The "Averments" provision (s 189) is a significant procedural concept: in any prosecution, a prosecutor may aver certain facts (such as that a vessel was a specified class, that specified goods were dangerous goods, or that a person was not licensed) and that averment is prima facie evidence of the matter, shifting the evidential burden to the defendant. The Administrator (the Administrator of the Northern Territory) has a dispensing power under section 193 to direct that compliance with a requirement be dispensed with if substantially complied with, unnecessary, or impracticable, subject to annual reporting to the Legislative Assembly.

The Marine Act 1981 affects a broad range of persons and entities involved in maritime activity in the Northern Territory. It applies to owners and masters of all vessels within Northern Territory waters, with specific divisions targeting different vessel types. Owners and masters of recreational vessels are subject to Division 4 (unsafe ships), the duty to report marine incidents (s 117), and collision duties (s 109). Owners and masters of domestic commercial vessels are subject to Division 5 (hazardous goods and dangerous goods) and the collision regulations (s 110). Operators of commercial operations that have been declared as declared services under Part 5 must hold a licence; this includes operators of vessels used for fee or reward unless exempted (s 129). Licence applicants must demonstrate they are fit and proper persons, and the Director considers the necessity and public interest of the service (s 134). The Act directly affects the Department head (the Director), shipping inspectors, police officers, and persons authorised under section 147(2) to carry out works on navigational aids. Persons who own, control, or use marine navigational aids (Part 6) are affected: they must obtain written approval to establish private aids (s 148), comply with Director’s notices to remove or modify aids (s 149), and face strict liability offences for damaging or obstructing aids (ss 154-155). The Act also affects passengers through Division 8, which makes it an offence for a passenger to obstruct machinery, equipment, or fittings (s 127), and allows the master to refuse boarding to persons causing annoyance or injury. Persons who erect structures below high water mark or moor floating structures to the sea floor must obtain prior written approval from the Director (s 188A), unless within a designated port (where the Ports Management Act 2015 applies). The closure of waters provisions (ss 188B-188CA) affect all persons using Northern Territory waters for recreation, commerce, or other purposes, but police officers are exempt when acting in the course of duty (s 188CA). The Administrator and Minister exercise discretionary powers that can affect vessel owners through closures, dispensations, and declarations. The Act also affects the National Regulator under the Marine Safety National Law, as formal investigation findings may be referred to that body (s 122). Ultimately, any person who operates, manages, or uses a vessel in Northern Territory waters, or who undertakes activities affecting marine navigation (such as erecting structures or establishing aids), is directly affected by the Act’s provisions. The Act does not apply to vessels belonging to a Defence Force (s 6), but it does bind the Crown in right of the Territory (s 5).

The Act imposes several key duties. The owner or master of a recreational vessel must not send or take an unsafe ship to sea knowing it is unsafe (s 97). The master of a domestic commercial vessel must comply with Director’s directions on hazardous goods (s 102) and dangerous goods (s 105). Any person must not contravene ministerial determinations on packing, marking, and carriage of dangerous goods (s 106). The master of a vessel involved in a collision must render assistance, stay by the other vessel, and provide identifying information (s 109). Vessel operators must not contravene collision regulations (s 110). Persons must not use false distress signals (s 112). Masters must report navigation hazards (s 115). The owner or master must not obstruct or endanger the safe passage of another vessel (s 115A). Any person must not unreasonably obstruct, hinder, or endanger the safe passage of a vessel (s 115B). The owner of a wrecked vessel must comply with Director’s direction to raise, remove, or destroy the vessel within 14 days (s 115D). The master of a recreational vessel involved in a marine incident must report it to the Director as soon as practicable and no later than 4 pm on the next business day (s 117). Persons required to answer questions or produce documents in an inquiry must not give misleading information or refuse without reasonable excuse (s 120). The master of a vessel must not contravene passenger accommodation or safety directions (s 128). Licensees of declared services must comply with all applicable laws, furnish information, comply with directions on boarding structures, and any additional conditions imposed by the Director (s 136). A person must not carry on a declared service without a licence (s 140). A person must not establish, maintain, or alter a marine aid without Director’s approval (s 148). Owners of aids must comply with Director’s notices to remove, modify, or cease using lights or aids (s 149). Persons must not damage, destroy, or obstruct aids (s 154) and must report damage immediately (s 155). No person may erect structures below high water mark or moor floating structures to the sea floor without approval (s 188A). Persons must not enter closed waters (ss 188B, 188C) and must not obstruct officers or crew members (s 188D). The Act also confers rights. A person suspected of dangerous goods may open and inspect packages and discharge or destroy them without civil or criminal liability (s 104). Shipping inspectors have broad powers to go on board, inspect, detain, and require information (s 8). Owners can apply for a licence (s 132) or an interim licence (s 133). A person aggrieved by a licensing decision may apply to the Civil and Administrative Tribunal for review after requesting reconsideration by the Director (s 141). Persons named in a formal investigation report as having caused or contributed to a marine incident may appeal to the Supreme Court within 28 days (s 125). Owners of wrecked vessels have a right to net proceeds of sale if the Director sells wreck (s 115D(3)). The Administrator may dispense with requirements under certain conditions (s 193).

Penalties under the Marine Act 1981 vary significantly by offence. The most severe penalty is 1,250 penalty units for knowingly sending or taking an unsafe ship to sea (s 97) and for contravening a detention requirement (s 186(3)). At the current value of a penalty unit under Northern Territory law (which is $157 for a natural person as at 2023), this equates to approximately $196,250. Offences against collision duties (s 109) also carry 1,250 penalty units. Other significant penalties include 500 penalty units for contravening a Director’s direction on hazardous goods (s 102), 400 penalty units for carrying on a declared service without a licence (s 140), 200 penalty units for giving misleading information during an investigation (s 120) or for damaging or obstructing a navigational aid (s 154), and 100 penalty units for a range of offences including defective collision equipment (s 110), dangerous goods packing violations (s 106), unreported damage to an aid (s 155), unauthorised structures (s 188A), obstruction of officers (s 188D), and failing to comply with a licence condition (s 140). Some offences carry imprisonment: obstruction of safe passage (s 115B) and obstruction of officers or crew (s 188D) carry up to 12 months imprisonment; giving misleading information in an inquiry carries up to 2 years imprisonment (s 120). The Act provides for strict liability for most safety-related offences, with a defence of reasonable excuse available in many cases (e.g., ss 105(2), 106(4), 110(5), 117(3), 128(4), 135(4), 139(6), 140(5), 148(3), 149(3B), 152(3), 154(5), 155(3), 188A(3), 188B(3B), 188C(5)). The Director has a powerful enforcement tool: detention of a vessel under section 186 where there has been a material failure to comply with Part 4, or where an unsafe ship offence is likely. The Director may require any person to do or refrain from doing any specified act to effect detention (s 186(2)), and a seaman complying is not in breach of the seaman’s agreement (s 186(4)). The vessel may be detained until compliance and fitness are established (s 188). The Act also provides for forfeiture or destruction of dangerous goods by court order upon conviction (s 107). For aids offences, the Territory can recover costs of replacement and repair as a debt (s 156). Continuing offences are expressly provided for: failure to comply with a continuing requirement results in an additional offence for each day the failure continues (s 192). The evidential burden is eased for the prosecution through the averments provision (s 189): the prosecutor may aver a range of facts (class of vessel, dangerous goods status, licence status, etc.) and that averment is prima facie evidence. This reverses the usual evidentiary burden, requiring the defendant to adduce contrary evidence. Regulations under the Act may impose penalties not exceeding 100 penalty units or 2 years imprisonment (s 194(4)). The Act also preserves the power to detain as a bar to prosecution (s 97(4)).

The Marine Act 1981 operates in a complex legislative environment and contains numerous references to other laws. It explicitly does not apply to vessels belonging to a Defence Force under the Defence Act 1903 (Cth) (s 6). The Act adopts definitions from and interacts with the Marine Safety (Domestic Commercial Vessel) National Law (Cth) (the "Marine Safety National Law"): certificates of survey, competency, and operation are defined by reference to that law, and the Act uses the same meaning for "domestic commercial vessel" and "vessel" (s 7). The Act also references the Navigation Act 2012 (Cth) for definitions of "regulated Australian vessel" and for the Tonnage Measurement Convention (s 7). Part 4 Division 5 (safety practices) and Part 4 Division 6 (collisions, etc.) apply subject to exemptions for designated ports under the Ports Management Act 2015: several dangerous goods provisions do not apply within a designated port (ss 102(4), 105(3), 106(6), 107(5)), and the vessel wrecked provisions (s 115D(5)) and structure approval (s 188A(6)) and closure of waters (ss 188B(4), 188C(6)) also exclude designated ports. The Ports Management Act 2015 and the Marine Safety National Law have substantially amended the Marine Act over time, removing provisions on pilotage, survey, and other matters that are now covered by national law. The Dangerous Goods Act 1998 is referenced for the definition of "Competent Authority" in section 107(6). The Fisheries Act 1988 is relevant: Part 5 licensing does not apply to fishing operations under that Act (s 129). The Aboriginal Land Act 1978 is mentioned in section 151: the Director or authorised person may enter upon any land despite that Act for the purposes of erecting, inspecting, or maintaining an aid. The Lands Acquisition Act 1978 applies to compulsory acquisition of aids under section 146, with modifications. The Corporations Act 2001 is referenced for director definitions (s 134(3)) and service of notices (s 142A(2)). The Public Sector Employment and Management Act 1993 defines the Director. The Criminal Code (Part IIAA) applies to all offences (s 7A). The Uniform Shipping Laws Code is incorporated by regulation (s 196) and includes the National Standard for Commercial Vessels, International Maritime Organisation documents, SOLAS, and Australian Standards. The Coastal Waters (Northern Territory Powers) Act 1980 (Cth) defines "Northern Territory waters". The Sentencing Act 1995 and other general criminal procedure legislation apply to penalties. The Act also interacts with the Northern Territory Civil and Administrative Tribunal Act 2014 for review of licensing decisions (ss 141-142). Importantly, the Act’s powers for removal of wrecks are in addition to powers under any other law for declared ports (s 115D(4)).

The Marine Act 1981 was assented on 2 November 1981 and commenced in stages, with most provisions commencing 31 March 1982 and sections 129-142 (now Part 5) originally not commenced. The Act has been amended many times. Key amendments include the Statute Law Revision Act 1985, 1987, and 1998 which made formal corrections. The Criminal Law (Regulatory Offences) Act 1983 inserted section 191A (now repealed). The Marine Amendment Act 1989 made substantial changes, including inserting Division 6A (vessels wrecked) and sections on obstruction and navigation hazards. The Public Sector Employment and Management (Consequential Amendments) Act 1993 updated references to the Director. The Marine Amendment Act 1994 substituted a new Part 5 licensing regime. The Marine Amendment Act 2000 removed large portions of Part 3 (survey, certificates, crew accommodation) in anticipation of the uniform national law. The Marine Safety (Domestic Commercial Vessel) (National Uniform Legislation) Act 2013 (No. 11, 2013) was a major amendment: it repealed almost all of Part 3 (survey, certificates, manning) and Parts 4 Divisions 1-3 on certificates of survey and operation, and replaced Division 4 to apply only to recreational vessels, updated Division 5 to apply only to domestic commercial vessels, and amended collision and investigation provisions. The Ports Management Act 2015 (No. 11, 2015) and the Ports Management (Repeals and Related and Consequential Amendments) Act 2015 (No. 12, 2015) were significant: they removed all of Part 7 (pilotage and port management), changed appeal bodies from the Marine Appeals Tribunal to the Local Court and then to the Civil and Administrative Tribunal, inserted new provisions on closure of waters and obstruction, and amended dangerous goods and navigation hazard provisions. The Local Court (Related Amendments) Act 2016 further adjusted appeal provisions. The Fisheries Legislation Amendment Act 2016 amended section 129 to exempt fishing operations under the Fisheries Act 1988 from Part 5 licensing. The Transport Legislation Amendment Act 2022 (No. 1, 2022) inserted section 112 on false distress signals (replacing previous section) and inserted section 188CA (police exemption from closed waters) and amended section 115B. The most recent amendment is the Statute Law Amendment (National Cabinet) Act 2023 (No. 9, 2023) which amended section 7 (definition of Ministerial Council) and section 196 (Uniform Shipping Laws Code). The Act as in force at 21 April 2023 reflects all these amendments. Parts 3 and 7 are entirely repealed. The transitional provisions in Part 10 address appeals from the former Marine Appeals Tribunal and Local Court.

The Marine Act 1981 contains its own internal litigation framework. Formal investigations into marine incidents are conducted under Division 7. The person holding the investigation must give a decision in open court and report to the Minister (s 120(5)). A formal investigator may advise the National Regulator that a certificate holder is not fit and proper (s 122). Persons named in a formal investigation report as having caused or contributed to a marine incident may appeal to the Supreme Court within 28 days (s 125). The Minister may order a rehearing if new evidence emerges or a miscarriage of justice is suspected (s 124). For licensing decisions under Part 5, a person aggrieved by a decision of the Director (refusal, variation, cancellation, suspension >7 days, or information requirement) must first request reconsideration in writing within 28 days; if the Director does not vary the decision within 14 days, the person may apply to the Civil and Administrative Tribunal for review (s 141). The Act does not cite any specific court cases. The transitional provisions in Part 10 (ss 213-216) show that before the 2015 amendments, appeals from licensing decisions went to the Marine Appeals Tribunal and later to the Local Court; those transitional provisions preserve pending appeals under the former law. The Act also provides for the use of assessors at formal investigations (s 202) and allows the Administrator to make regulations for procedure (s 202). The Supreme Court’s appellate jurisdiction under section 125 has been exercised in practice, but the Act itself does not name any cases. The averments provision (s 189) has likely been the subject of judicial consideration regarding its constitutional validity and interaction with the right to silence, but no such cases are referenced in the Act. The strict liability provisions and the reasonable excuse defence have been litigated in the Local Court and Magistrates Court, but the Act provides no case list. The dispensing power of the Administrator (s 193) is required to be reported annually to the Legislative Assembly, but no specific litigation around that power is mentioned.

Several provisions in the Marine Act 1981 create traps for the unwary. First, the definition of "unsafe ship" in Division 4 (ss 95-97) applies only to recreational vessels (s 95). This is a crucial limitation: commercial vessels are not covered by that division. However, the Director can still detain a commercial vessel for non-compliance with Part 4 under section 186. Second, the duty to report marine incidents under section 117 applies only to "the master of a recreational vessel". This means that masters of commercial vessels are not expressly required to report marine incidents under this Act, although they may have obligations under national law. Section 116 says Division 7 applies to every vessel, but the offence provision singles out recreational vessels. Third, several important safety provisions do not apply within a designated port as defined under the Ports Management Act 2015: the Director’s powers regarding hazardous goods directions (s 102(4)), dangerous goods packing and carriage (s 106(6)), forfeiture of dangerous goods (s 107(5)), wrecked vessel powers (s 115D(5)), structure approvals (s 188A(6)), and closure of waters (ss 188B(4), 188C(6)). This creates a patchwork where different rules apply inside and outside ports. Fourth, the averments provision (s 189) is a significant procedural trap for defendants. The prosecutor can simply aver in the complaint that a vessel was of a specified class, that goods were dangerous, or that a person was not licensed, and that averment becomes prima facie evidence. The defendant must then adduce contrary evidence to rebut it, reversing the usual prosecution burden. Fifth, the dispensing power of the Administrator (s 193) can grant relief, but only to a vessel or class of vessels, not to an individual owner or master directly unless they fall within a class. The power is not self-executing; an application would need to be made. Sixth, section 115A creates an offence for the owner or master if a vessel is operated, moored, anchored, or secured in a manner likely to obstruct or create a hazard to another vessel. This is a strict liability offence with no reasonable excuse defence (unlike many other strict liability provisions). Section 115B creates a similar offence for any person, also strict liability, with up to 1 year imprisonment. Seventh, the defence of reasonable excuse is available for many strict liability offences but not all: for example, it is not listed for section 115A or 115B, but it is listed for sections 105, 106, 110, 115, 117, 128, 135, 139, 140, 148, 149, 152, 154, 155, 188A, 188B, and 188C. Practitioners must check each section carefully. Eighth, the offence of carrying on a declared service without a licence (s 140(1)) carries 400 penalty units, but the Act does not require a licence until the Minister has made a declaration under section 131. A person can be operating a commercial service lawfully until that declaration is made, but must then apply for a licence within the 30-day period before the declaration comes into effect (s 131(2)). Ninth, the Director’s power to require information from a licensee (s 135) is backed by a strict liability offence with a reasonable excuse defence, but the notice must specify the time for compliance. Licensees should be alert to these notices. Tenth, the formal investigation provisions (s 122) allow the investigator to advise the National Regulator that a certificate holder is not fit and proper, but only if a copy of the case has been furnished to the person before the investigation and reasons are published. Failure to comply with those procedural requirements may make the advice invalid.

Compliance with the Marine Act 1981 requires a systematic approach. For vessel owners and masters, the first step is to determine which vessel category applies: recreational, domestic commercial, fishing, offshore industry, or hire-and-drive. Recreational vessel operators must ensure their vessel is not an unsafe ship (ss 95-97): this means regular maintenance, proper loading, adequate manning, and fitness for the proposed voyage. The master must report any marine incident to the Director as soon as practicable and no later than 4 pm the next business day (s 117). Masters of recreational vessels involved in collisions must render assistance, stay by, and provide name and address (s 109). For domestic commercial vessels, compliance with Director’s directions on hazardous goods (s 102) and dangerous goods (s 105) is mandatory. Dangerous goods must be packed, stowed, marked, and carried in accordance with ministerial determinations (s 106). Operators should maintain records of dangerous goods to show compliance. All vessels must be equipped with appropriate lights, shapes, and signals for collision prevention (s 110). Masters must report navigation hazards (s 115). The owner or master must not operate, moor, anchor, or secure a vessel in a manner likely to obstruct or create a hazard to another vessel (s 115A). Any person must not unreasonably obstruct or endanger the passage of a vessel (s 115B). For persons operating commercial services that may be declared by the Minister, it is essential to monitor the Gazette for declarations (s 131) and apply for a licence promptly. Licence applications must be on the approved form with the prescribed fee (s 132). Applicants must demonstrate they are fit and proper: not bankrupt, not having had a licence cancelled on certain grounds, not a director of a body corporate that had a licence cancelled, not convicted of prescribed offences, able to meet safety standards, and not engaging in improper conduct (s 134(3)). Body corporates must ensure their constitutions allow the operations and each director would individually qualify (s 134(4)). Licensees must comply with all applicable laws, furnish information when required, comply with directions on boarding structures, and any additional conditions (s 136). They must permit shipping inspectors to board vessels and produce documents (s 139). For marine navigational aids, any person who wishes to establish, maintain, alter, or remove an aid must obtain written approval from the Director (s 148). Owners of existing aids must comply with any Director’s notice to remove, modify, or cease using them (s 149). Persons must not moor vessels to aids (s 152), damage or destroy them (s 154), or obstruct their view (s 154). Damage must be reported immediately (s 155). For structures, no person may erect a jetty, wharf, pontoon, mooring, or other structure below high water mark, or moor a floating structure to the sea floor, without prior written approval from the Director (s 188A). The approval may be subject to conditions and refusal must be on reasonable grounds in writing. A person given such a notice may apply to the Civil and Administrative Tribunal for review (s 188A(5)). For general compliance, all persons should be aware of the closure of waters provisions: the Director can close waters for up to 48 hours, the Minister for longer periods (ss 188B-188C). Police officers may enter closed waters in the course of duty (s 188CA). Obstruction of shipping inspectors or crew members engaged in navigation is an offence (s 188D). Given the strict liability nature of most offences, diligence and record-keeping are critical. The defence of reasonable excuse is available for many but not all provisions; practitioners should advise clients to document reasons for any non-compliance. Where the Administrator’s dispensing power is sought, a formal application should be made, noting the requirement for annual reporting (s 193). Finally, given the incorporation of the Uniform Shipping Laws Code by regulation (s 196), compliance obligations extend to the Code as amended from time to time upon Gazette notification.