Marine and Harbours Act 1981

The Marine and Harbours Act 1981 primarily affects three broad groups: public sector entities, commercial and recreational marine users, and adjacent landowners or occupiers.

The Minister for Transport (constituted as a body corporate under s. 8) holds all vested land and property and exercises the statutory powers. The Department (defined in s. 3) and its chief executive officer perform the operational functions listed in s. 5 and day-to-day administration, including erection of signs (s. 5B), appointment of authorised persons (s. 18A(11)), and delegation (s. 18). Officers and employees are engaged under the Public Sector Management Act 1994 (s. 4). Port Authorities established under the Port Authorities Act 1999 are indirectly affected because the Department must advise them when requested (s. 5(1)(d)) and cannot undertake port works in their ports without agreement (s. 5(1A)). Local governments and statutory authorities retain the ability to levy rates on Minister-owned land that is leased for private purposes (s. 11(2)).

Commercial operators are heavily impacted. Shipping companies, pilotage providers (outside Port Authority ports), marina operators, boat charter businesses, and developers seeking to commercially exploit vested land or facilities must comply with Departmental controls. Leases under s. 12 may be granted for commercial development, but only after any required planning approvals under the Planning and Development Act 2005 or Swan and Canning Rivers Management Act 2006 (s. 12(3)–(4)). Persons using departmental areas for berthing, mooring, storage of vessels, or parking pay prescribed fees (s. 19(1)(g)). Contractors supplying works, materials, or services under Ministerial contracts (s. 6) or acting as agents (s. 7) are also subject to the regime.

Recreational users—private boat owners, fishers, water-skiers, and visitors to boat ramps, jetties, and launching facilities—are regulated through prohibitions on entry, conduct, vehicle movement, littering, fire lighting, and erection of structures that can be imposed by regulation (s. 19(1)(a)–(e)). Infringement notices can be issued for prescribed offences (s. 18A), and owner onus applies to motor vehicle contraventions (s. 18B). The safety-of-life functions in s. 5(1)(e) directly benefit this group by requiring the Department to maintain navigation aids and facilities.

Landowners or occupiers adjacent to departmental areas may be affected by vesting proclamations (s. 9), compulsory acquisition (s. 10), or restrictions on interfering with seabed or shores. Persons who held leases or licences before vesting take their interests subject to the new vesting but the Minister may grant new leases for community activities or commercial purposes (s. 12(1)–(2)). Developers whose proposals require Metropolitan Region Scheme or Swan Valley Planning Scheme approval cannot obtain a lease inconsistent with that approval (s. 12(3)).

Finally, the general public benefits from order preservation, safety measures, and commercial promotion of facilities but must observe regulatory prohibitions on conduct within departmental areas. Authorised persons and inspectors exercising powers must produce identification (s. 18A(12)–(13)), providing a safeguard for those interacting with enforcement officers.

The Act creates a mixture of public law duties, private rights, and regulatory obligations.

The Department's key duties are set out in s. 5(1). It must administer marine and port affairs, provide pilotage (outside Port Authority ports), advise the Minister, assist Port Authorities on request, regulate safety of life, construct and manage smaller ports and harbours, promote their commercial development, supply facilities for shipping and boating, and preserve vested property. These are expressed as "functions" rather than strict duties, but they guide the exercise of Ministerial and Departmental discretion and can ground judicial review if ignored. The chief executive officer has a specific power and duty to erect necessary signs (s. 5B(1)) and a duty not to appoint the same person to conflicting infringement notice roles (s. 18A(11)).

The Minister's duties include ensuring revenue is credited to the Consolidated Account (s. 13), approving special purpose accounts with the Treasurer (s. 14(1)), and exercising powers consistently with planning approvals when granting leases (s. 12(3)–(4)). The Minister must also act as a model litigant when sued in corporate name (s. 8(1)(d)).

Rights conferred on private parties are largely facilitative. Any person may apply for a lease of vested land for purposes within the Act or for community or commercial development (s. 12(2)). Once a planning approval under the Swan and Canning Rivers Management Act 2006 or relevant planning schemes has been obtained, the Minister cannot refuse a lease but may include conditions consistent with that approval (s. 12(4)). Persons may enter contracts with the Minister for works or services (s. 6) and may be appointed as agents (s. 7). The right to use departmental facilities is conditional on payment of prescribed fees (s. 19(1)(g)) and compliance with regulations.

Defence rights exist in the enforcement regime. Payment of a modified penalty prevents prosecution and is not an admission (s. 18A(6), (10)). An owner served with an infringement notice under the owner-onus provision (s. 18B) has the right to avoid liability by identifying the driver or proving theft or unlawful use within the time stated. A person charged with an offence dependent on a sign may defend on the basis that no sign existed if that is an element of the offence (s. 5B(2)).

Regulatory duties are imposed by regulations made under s. 19. These can prohibit entry, vehicle parking, removal of materials, erection of structures, littering, and fire lighting. A positive duty to comply with speed limits, pay fees, and obtain written permission for certain activities is anticipated. The duty not to interfere with signs carries a specific $5 000 penalty (s. 5B(3)).

Public sector accountability duties include the requirement that contracts with other State entities be on agreed financial terms (s. 6(2)) and that services provided outside the Act have Ministerial approval (s. 6A(1)).

Enforcement under the Act is primarily administrative and regulatory rather than court-centric. The centrepiece is the infringement notice scheme in s. 18A. An inspector or authorised person may serve a notice for any prescribed offence within 21 days (s. 18A(2)). The modified penalty is the amount prescribed at the time of the offence (s. 18A(4)). Payment within 28 days (or as extended) disposes of the matter as if the person had been convicted and punished (s. 18A(6)). Withdrawal is possible even after payment, with refund (s. 18A(7)–(8)). The amount collected is treated as a court-imposed fine (s. 18A(9)).

Section 18B adds an owner-onus mechanism for motor vehicle offences. If the driver cannot be identified immediately, the owner may be served at their address or by affixing the notice to the vehicle. The owner is deemed the offender unless they pay, identify the driver, or prove the vehicle was stolen or unlawfully used. This reverses the usual burden in a limited way and is a significant departure from ordinary criminal responsibility.

A specific offence is created in s. 5B(3): destroying, damaging, defacing, moving, or interfering with a departmental sign carries a flat fine of $5 000. Regulations made under s. 19(1)(h) may create additional offences with penalties not exceeding $12 000. Because regulations can adopt external standards by reference (s. 19(2)), breach of an incorporated code can also constitute an offence.

Civil enforcement is available through the Minister's corporate capacity to sue (s. 8(1)(d)). Recovery of costs of removing unauthorised structures is expressly contemplated by regulation (s. 19(1)(f)). Compulsory acquisition of land follows the Land Administration Act 1997 procedure (s. 10), which itself contains compensation rights.

Delegation (s. 18) and appointment of authorised persons (s. 18A(11)) ensure enforcement can be scaled. Authorised persons must carry certificates, and inspectors must produce identity cards (s. 18A(12)–(13)). Judicial notice is taken of the Minister's seal (s. 8(2)), facilitating proof in enforcement proceedings.

No imprisonment penalties appear in the Act; all sanctions are monetary. The Sentencing (Consequential Provisions) Act 1995 and Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 have updated procedural aspects of infringement notices.

The Marine and Harbours Act 1981 is deliberately interwoven with a constellation of other Western Australian statutes and, to a limited extent, Commonwealth law.

The most significant relationship is with the Port Authorities Act 1999. The definition of "port" in s. 3 expressly includes ports declared under the Shipping and Pilotage Act 1967 and ports as defined in the Port Authorities Act 1999 s. 3(1). However, the Department's functions are expressly limited so as not to overlap with Port Authority responsibilities (s. 5(1)(b), (f)). The prohibition on undertaking port works without Port Authority agreement (s. 5(1A)) prevents duplication. The Department may still advise Port Authorities (s. 5(1)(d)).

The Western Australian Marine Act 1982 supplies the definition of "inspector" (s. 3) and the identity card requirement (s. 18A(13)). Many of the offences likely to be prescribed under s. 19 will overlap with that Act's safety regime.

The Shipping and Pilotage Act 1967 is incorporated by reference: "harbour" includes boat harbours declared under s. 10(2) of that Act, and "port" includes ports declared under s. 10(1) (s. 3). Pilotage functions are carved out where a Port Authority lawfully provides them.

Planning and environmental laws are engaged through s. 12(3)–(4). Leases cannot be granted, or must be consistent with, approvals required under the Swan and Canning Rivers Management Act 2006 s. 70, the Metropolitan Region Scheme, or the Swan Valley Planning Scheme (as defined in the Planning and Development Act 2005). The Ports Legislation Amendment Act 2019 and Swan Valley Planning Act 2020 have kept these cross-references current.

Land acquisition and rating interact with the Land Administration Act 1997 (s. 10) and the Local Government (Consequential Amendments) Act 1996 (s. 11). Financial management is governed by the Financial Management Act 2006 for special purpose accounts (s. 14) and the Consolidated Account (s. 13). The State Trading Concerns Act 1916 is expressly overridden to allow the Department to provide services outside the Act with approval (s. 6A(1)).

The Public Sector Management Act 1994 governs appointment of officers (s. 4(4)). The Interpretation Act 1984 ss. 58 and 59 apply to subdelegations (s. 18(3)). References to former departments are updated by s. 20.

At Commonwealth level, the Act contemplates adoption of standards made under Commonwealth Acts or by Standards Australia (s. 19(2)). National laws on dangerous goods or vessel safety may therefore be picked up by regulation. The Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 has made further adjustments to avoid overlap with national commercial vessel regulation.

The Act is expressed to operate subject to itself (s. 5(1)), but its regulation-making power allows incorporation of codes from any Australian or United Kingdom legislation, creating a hierarchical web of subordinate legislation.

The compilation table reveals three decades of incremental but significant amendment. The most transformative changes occurred in 1993. The Ports (Functions) Act 1993 and Acts Amendment (Department of Transport) Act 1993 (both assented 20 December 1993) restructured marine administration following the creation of independent Port Authorities. These amendments inserted the current s. 5 functions, narrowed the Department's role, introduced the body corporate provision (s. 8), revenue and account provisions (ss. 13–14), delegation (s. 18), and the transitional reference provision (s. 20). They also deleted large parts of the original financial machinery. The reason was to commercialise major ports while retaining a safety and small-harbour focus for the Department.

The Marine and Harbours Amendment Act 1994 (assented 13 December 1994) added the infringement notice regime (ss. 18A–18B), the sign-posting power (s. 5B), expanded regulation-making powers, and clarified lease validity for community and commercial purposes. This was part of a broader move across Western Australian statutes toward on-the-spot fines to improve enforcement efficiency.

Subsequent amendments have been largely machinery. The Financial Legislation Amendment and Repeal Act 2006 updated references to the Consolidated Account and Financial Management Act 2006. Planning and rivers legislation amendments (2005, 2006, 2020) kept s. 12 lease conditions aligned with contemporary planning schemes. The Ports Legislation Amendment Act 2019 (assented 26 February 2019, with staged commencement) made further adjustments to Departmental functions (s. 5), deleted obsolete sections (5A, 14A), and updated definitions and infringement notice procedures to reflect evolving port governance and national marine safety reforms. The Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023 made the most recent changes, primarily to s. 18A, to maintain consistency with national law applying to domestic commercial vessels.

These changes reflect three policy drivers: (1) commercialisation and separation of large port operations; (2) modernisation of enforcement through infringement notices and owner onus; and (3) alignment with national safety standards and contemporary planning and financial legislation. The result is an Act that is narrower in operational scope but richer in administrative and enforcement tools than the 1981 original.

The printed Act and its notes do not record any specific court challenges or reported decisions interpreting its provisions. This is not surprising given the largely administrative and regulatory character of the statute. Most disputes are likely resolved through infringement notice payment or internal departmental review rather than litigation.

The owner-onus provision in s. 18B is the most likely source of future controversy. Similar provisions in road traffic legislation have been upheld against due process or presumption of innocence challenges, but a marine-specific factual matrix (for example, an unmanned vessel drifting in a departmental area) could test the limits of the deeming rule. Because s. 18B(2) requires the owner to "satisfy" an inspector or authorised person, the standard of proof and natural justice obligations on the decision-maker could generate administrative law litigation.

Section 5(1A)'s requirement for Port Authority agreement before the Department undertakes port works has the potential to create inter-agency disputes. If a Port Authority withholds agreement unreasonably, questions of Wednesbury unreasonableness or bad faith could arise, although the Act gives no express dispute resolution mechanism.

The breadth of the regulation-making power in s. 19, particularly the ability to prohibit classes of persons or things from departmental areas and to adopt external standards by reference, could invite challenges on the ground that particular regulations exceed the "purposes of this Act" or are impermissibly vague. However, the inclusion of s. 19(3) expressly authorising differential application, discretions, and exemptions strengthens the regulations against such attacks.

The compulsory acquisition power (s. 10) cross-references Part 9 of the Land Administration Act 1997, which itself contains compensation and objection procedures. Any controversy is therefore likely to occur under that parent Act rather than this one.

No controversies are noted in the compilation table or other notes. The 1994 amendment's validation clause for pre-existing community and commercial leases (reproduced in the "Other notes" section) was a legislative response to a perceived doubt about validity rather than a court decision.

Overall, the Act appears to have operated with low judicial visibility, consistent with its operational rather than rights-limiting character.

Most practitioners assume the Act only concerns big commercial ports. In reality, after the 1993–1999 reforms it applies only to the smaller "departmental" ports and harbours; major ports fall under separate Port Authority legislation. Failing to appreciate the carve-out in s. 5(1A) can lead to wasted time negotiating works that the Department has no power to deliver without Port Authority consent.

The owner-onus provision in s. 18B is wider than many realise. It applies whenever an element of a prescribed offence involves "use, driving, parking, standing or leaving of a motor vehicle" and the driver cannot be "immediately established". A trailer left on a boat ramp car park after hours could trigger it. The statutory defence requires the owner to satisfy an inspector or authorised person; there is no automatic court hearing if the owner simply writes a letter. Many operators therefore inadvertently admit liability by incomplete correspondence.

Section 12(3)–(4) creates a trap for developers. Even though the Minister "shall not refuse to grant a lease" once planning approval exists, the Minister can still impose conditions consistent with that approval. A lessee who signs without carefully negotiating those conditions may find the lease unworkable. The interaction with the Swan and Canning Rivers Management Act 2006 is particularly dense for projects near the Swan River.

Regulations made under s. 19 can adopt entire codes "wholly or in part, with or without modifications… by reference". A breach of an incorporated Australian Standard on navigation aids can therefore constitute an offence carrying up to a $12 000 fine without the regulation ever spelling out the detailed requirement. Compliance professionals must maintain a register of every standard referenced in the current Marine and Harbours Regulations.

The sign-posting provision (s. 5B(2)) removes a common defence: it is not a defence to prove a sign was not erected unless the offence element itself depends on the sign. In practice, this means a prosecutor need not prove visibility of prohibitions in most cases. Conversely, damaging a sign carries a fixed $5 000 penalty with no upper limit on additional civil recovery for replacement costs.

Special purpose accounts under s. 14 can be established only with dual Treasurer and Minister approval, yet s. 14(2) disapplies the usual sun-setting provision of the Financial Management Act 2006 s. 20. This creates a little-known pocket of retained funds that can surprise auditors years later.

Finally, the Act still contains references to repealed legislation in its definitions and transitional provisions. Practitioners who rely on the compilation table without checking the 1993 amending Acts can miss that "Department" now means the transport department, not the old Department of Marine and Harbours.

Compliance begins with mapping the operational footprint. Any person or business using, leasing, or developing land or water within a departmental area (as defined in s. 3) must first identify whether the area is managed by the Department or by a Port Authority. The Department's website and proclamation records under s. 9 are the authoritative sources.

Leaseholders under s. 12 should obtain written confirmation that any required planning approval under the Planning and Development Act 2005 or Swan and Canning Rivers Management Act 2006 has been granted before executing the lease. All lease conditions must be reviewed against the approval to avoid inconsistency. Commercial operators should ensure the lease term and renewal rights are documented; the Minister has broad discretion under s. 12(2a).

Users of facilities must pay all prescribed fees for mooring, berthing, storage, parking, or services (s. 19(1)(g)). Failure to do so can be made an offence by regulation. Written permission must be obtained before removing materials, erecting structures, or undertaking activities prohibited by regulation (s. 19(1)(e)).

Vessel operators must maintain awareness of navigation aids, speed limits, and conduct rules posted or prescribed for departmental areas. The absence of a physical sign is not a defence (s. 5B(2)). Owners of motor vehicles used in connection with alleged offences should have systems to identify drivers promptly; otherwise they risk being deemed the offender under s. 18B.

Organisations intending to provide services or act as agents should secure a written arrangement under s. 6, 6A or 7 that clearly states remuneration, area of operation, and performance standards. Contracts with the Minister for works should be executed in the Minister's corporate name and, if with another State agency, specify financial terms (s. 6(2)).

To manage infringement risk, operators should designate a single point of contact for receiving and responding to notices under s. 18A. Responses to owner-onus notices must be made within the 28-day period (or extension) and must either identify the driver with sufficient particularity or provide evidence of theft or unlawful use. Payment of a modified penalty should be treated as a business cost rather than an admission, but repeated payments may attract regulatory attention.

Internal compliance programs should include training on the $5 000 sign-interference offence (s. 5B(3)) and regular audits of any structures or moorings to ensure they are authorised. Developers must factor in the Department's commercial promotion functions (s. 5(1)(ia)) when proposing joint ventures; unsolicited development proposals may be redirected through the formal lease process.

Annual review of regulations made under s. 19 is essential because they can incorporate changing external standards without further amendment to the Act. Legal sign-off should be obtained before relying on any exemption clause in the regulations (s. 19(3)(d)).

Finally, organisations that interact with the Department on policy or capital expenditure (s. 5(1)(c)–(d)) should document all advice given or received, as these records may become relevant if inter-agency disputes arise under s. 5(1A).

A robust compliance manual will cross-reference the Act's sections against the specific Marine and Harbours Regulations currently in force, maintain a current list of authorised persons and inspectors, and include a flowchart for responding to infringement notices within statutory timeframes.