The Act defines a suite of key terms in s 3. The Authority is the Marine and Safety Authority established under s 4. The Board is the Board of Directors of the Authority, responsible to the Minister for the Authority’s performance and for ensuring its business and affairs are managed in accordance with sound commercial practice (s 13). A director means a person appointed under s 8(1)(a) or (b) or an acting director appointed under s 9(1); the chief executive officer is also a director but Schedule 1 excludes the CEO from certain director provisions (see Sch 1 cl 1). The chairperson is appointed by the Minister under s 8(1)(a).

The National Law means the Commonwealth domestic commercial vessel national law within the meaning of the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2013, together with the applied provisions of that Act. The National Regulator has the same meaning as in the National Law. A commercial vessel has the same meaning as domestic commercial vessel in the National Law; a domestic commercial vessel likewise takes its meaning from the National Law. A certificate of survey means a certificate issued by the National Regulator warranting that a vessel complies with the vessel survey requirements of the National Law.

The term vessel has the same meaning as in the National Law and includes any other prescribed craft, or any craft of a prescribed class, used for recreational purposes. This broad definition ensures that the Act can capture both commercial and recreational watercraft. The Act also defines air cushion vehicle, coastal waters, marine facility, port company, port operator, trading vessel, and wharf (including landing places, piers, jetties, docks, approaches, spaces under wharves, and sheds or structures on wharves). The definition of unseaworthy is set out in s 38B(1): a vessel is unseaworthy if it is not properly manned or supplied with provisions; if it is overloaded or improperly loaded; if, for a commercial vessel, it does not have a current certificate of survey; or if, for a non-commercial vessel, it is certified unseaworthy by a marine surveyor or naval architect.

Other key concepts include Australian Accounting Standards, former Act (the Marine Act 1976), former Authority (the Navigation and Survey Authority of Tasmania), transfer day, and commencement day (the day proclaimed under s 2). The Act also defines financial statements as those prepared under s 25, and employee as a person referred to in s 19 who is not a contractor or consultant.

The Act directly affects the Marine and Safety Authority itself, its Board of Directors, the chief executive officer, and employees. Directors (including the chairperson) are appointed by the Minister (s 8(2)) and must have skills and experience relevant to the Authority’s functions. The CEO is appointed by the Board (s 16(1)) and is responsible to the Board for general administration and management. Employees may be employed or engaged by the Authority as necessary (s 19(1)). The Act also allows the Authority to engage a port company to perform any of its functions (s 19(1A)), and to arrange for State Service officers and employees to be made available (s 19(2)).

Vessel owners are significantly affected. The Act imposes duties on owners in respect of abandoned, unseaworthy or sunken vessels (Division 2A of Part 5). Owners must comply with notices requiring them to put the vessel into seaworthy condition or relocate it (s 38B). If they fail to comply, the Authority may apply to the Supreme Court for an order authorising seizure and disposal (s 38D). Owners may also be required to move a vessel from a wharf or mooring if it causes obstruction, danger, pollution, or any other hazard (s 38E). Failure to comply attracts penalties.

Persons operating marine facilities, port operators, and port companies are affected by the Authority’s management powers and by-law-making powers. The Authority may make by-laws covering anchors, motor boats, sailing vessels, movement and mooring of vessels, cargo operations, marine facilities, wrecked or sunken vessels, detention of vessels, and fees and charges (s 42). The Act also authorises the Authority to appoint authorised persons for the purposes of regulations and by-laws (s 44), and those authorised persons may serve infringement notices for prescribed offences (s 45).

The National Regulator is affected because the Authority performs delegated functions under the National Law (s 5(cb) and s 6(1)(ab)). The Minister for Transport is assigned administration of the Act until an order under the Administrative Arrangements Act 1990 provides otherwise (s 56). The Treasurer may give directions as to financial statements (s 25(4)) and the Auditor-General audits the Authority’s financial statements (s 25(1) read with Audit Act 2008). Port companies engaged by the Authority, their board members, and their employees enjoy statutory immunity for acts done in good faith (s 35(2A)-(2C)), but liability attaches to the Authority. Pilots holding licences under the Marine and Safety (Pilotage and Navigation) Regulations 1997 also have limited immunity for negligent advice regarding navigation (s 35(2E)).

Directors owe statutory duties enforceable by penalty. Section 10(1) requires a director to act honestly in the performance and exercise of functions and powers, with a maximum fine of 50 penalty units. Section 10(2) requires a director to exercise the same degree of care and diligence that a person in a similar position in a corporation is required to exercise, also with a maximum fine of 50 penalty units. Section 11 prohibits a director or former director from improperly using information acquired as a director or the fact of being a director to gain an advantage or cause damage to the Authority; the penalty is a fine not exceeding 100 penalty units or imprisonment for up to 5 years, or both. If a director is found guilty of that offence, the Authority may recover any profit made and any loss or damage suffered as a debt due in a court of competent jurisdiction (s 12).

The chief executive officer must inform the Board in writing of any direct or indirect pecuniary interest in any business or body corporate as soon as practicable after acquiring or becoming aware of that interest (s 18). The CEO must also perform functions delegated by the Board or imposed by the Act and may exercise powers delegated or granted (s 17).

The Board has the power to delegate any function or power (except the power of delegation) to a director or employee (s 14). The Board also has power to do anything necessary or convenient in connection with its functions and powers under the Act or any other Act (s 15).

The Authority has broad powers under s 6(2) to do anything necessary or convenient to perform its functions. It may delegate functions or powers to any person or body by instrument in writing, except the power of delegation itself (s 7). The Authority may enter into agreements or contracts with any person regarding its functions or enforcement of regulations or by-laws (s 53), and may divest itself of assets or rights and vest them in any other person, and may divest itself of management and control of marine facilities (s 54).

A significant right of the Authority is the power to serve notices on owners of unseaworthy, abandoned or sunken vessels under s 38B, and to apply to the Supreme Court for seizure and disposal orders if the owner fails to comply (s 38D). The Authority may recover costs of seizure and disposal from the owner if proceeds of sale are insufficient (s 38D(5)). The Authority may also require a vessel to be moved from a wharf or mooring if it is causing or likely to cause obstruction, danger, pollution, or any other hazard (s 38E).

The Act grants extensive immunity. The CEO does not incur personal liability for acts done or omitted in good faith in the performance or purported performance of functions or powers under the Act (s 35(1)). Employees have similar immunity for acts done or omitted in good faith in the course of employment (s 35(2)). Port companies engaged by the Authority, their board members, and their employees (excluding contractors or consultants) also have immunity when acting in good faith (s 35(2A)-(2C)). Authorised persons appointed under s 44 enjoy the same immunity (s 35(2D)). Pilots holding licences under the Marine and Safety (Pilotage and Navigation) Regulations 1997 do not incur personal liability for damage or loss caused by their neglect or lack of skill in providing advice with respect to vessel navigation (s 35(2E)). Critically, any liability that would attach to these individuals or entities attaches instead to the Authority (s 35(3)). Furthermore, an action does not lie against the Authority for any act done or omitted in relation to any defect in equipment or facility provided for the operation or safety of vessels (s 35(4)), nor for any act done or omitted in relation to any service provided for the operation or safety of vessels (s 35(5)).

Board meetings are governed by Schedule 2. Directors must disclose any direct or indirect pecuniary interest in a matter being considered that may conflict with their duties (Sch 2 cl 6(1); penalty: 10 penalty units or 3 months imprisonment or both). The disclosure must be recorded in the minutes, and the director must not be present during deliberation or take part in any decision unless the Board otherwise determines (Sch 2 cl 6(3)-(4)). The disclosure obligation does not apply to ordinary supply contracts or to interests arising solely because the director is also a State Service officer or employee (Sch 2 cl 6(5)).

The Act creates several offence provisions with specified penalties. Directors who breach the duty of honesty under s 10(1) or the duty of care and diligence under s 10(2) face a fine not exceeding 50 penalty units. A director or former director who improperly uses information or office under s 11 faces a fine not exceeding 100 penalty units or imprisonment for up to 5 years, or both.

An owner who fails to comply with a notice to put a vessel into seaworthy condition or relocate it under s 38B(2) commits an offence punishable by a fine not exceeding 50 penalty units and, for a continuing offence, a further penalty of 5 penalty units for each day the offence continues (s 38B(4)). Similarly, a person who fails to comply with a notice requiring a vessel to be moved from a wharf or mooring under s 38E(1) faces the same penalty structure: a fine not exceeding 50 penalty units plus 5 penalty units per day (s 38E(2)).

The Governor may make regulations under s 39 which can provide that a contravention is an offence and impose a fine not exceeding 50 penalty units, with a further fine not exceeding 20 penalty units for each day during which a continuing offence continues (s 39(3)(b)). The Authority may make by-laws under s 42 which can also create offences, subject to the penalty limits in the regulations under s 39. By-laws under s 42 are not statutory rules under the Rules Publication Act 1953 but are taken to be subordinate legislation under the Subordinate Legislation Act 1992 (s 42(4)).

Enforcement includes an infringement notice regime under Division 4 of Part 5. A person authorised by the Authority may serve an infringement notice on a person (other than a person under 16 years) if of the opinion that the person has committed a prescribed offence under regulations or by-laws (s 45(1)). An infringement notice may not relate to four or more offences (s 45(2)). The notice must be in accordance with s 14 of the Monetary Penalties Enforcement Act 2005 (s 45(3)). Payments in respect of infringement notices are payable into the Public Account (s 46).

For vessels, the Authority may apply to the Supreme Court for an order authorising seizure and disposal if an owner fails to comply with a s 38B notice (s 38D(1)). The Court may make the order if satisfied that the vessel has been abandoned, is sunken or unseaworthy, or the owner has failed to comply with the notice (s 38D(2)). The order may be subject to conditions (s 38D(3)). Proceeds of sale, less the Authority’s costs, are paid to the owner; if not claimed within one month, they are dealt with under the Unclaimed Money Act 2015 (s 38D(4)). If proceeds are insufficient to cover costs, the Authority may recover the shortfall from the owner (s 38D(5)).

The Act interacts extensively with the National Law regime. The definition of National Law in s 3 cross-references the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2013, and key definitions such as commercial vessel, domestic commercial vessel, master, National Regulator, owner of a vessel, and vessel all take their meaning from that National Law. The Authority’s jurisdiction under s 5 includes domestic commercial vessels in relation to matters specified in s 6(2) of the National Law, and any matters delegated to it by the National Regulator. The Authority’s functions under s 6(1)(ab) include performing those delegated functions. This means the Act operates in a cooperative federalism model where state and national regimes intersect.

The Act also interacts with several other Tasmanian statutes. Section 23 exempts the Authority from the payment of any tax or duty imposed under any law of the State. Section 33 provides a similar exemption for transfers of assets, rights or liabilities to the Authority. Under s 25(1), the Board must prepare financial statements and forward them to the Auditor-General in accordance with the Audit Act 2008. The annual report under s 28 must include a copy of the Auditor-General’s opinion received under s 19 of the Audit Act 2008. Section 28(4) provides that s 36 of the State Service Act 2000 does not apply to the Authority, reflecting the Authority’s independent employment powers. The Authority may arrange for State Service officers and employees to be made available under s 19(2), which cross-references the State Service Act 2000.

The definition of corporation in s 3 refers to the Corporations Act. The duty of care and diligence in s 10(2) requires a director to exercise the same degree of care and diligence that a person in a similar position in a corporation is required to exercise, referencing the common law and statutory duties under corporations legislation. By-laws made under s 42 are not statutory rules under the Rules Publication Act 1953 but are taken to be subordinate legislation under the Subordinate Legislation Act 1992 (s 42(4)). Infringement notices under s 45 must comply with the Monetary Penalties Enforcement Act 2005 (s 45(3)). Proceeds of sale of seized vessels are dealt with under the Unclaimed Money Act 2015 (s 38D(4)). The Act also references the Tasmanian Public Finance Corporation Act 1985 regarding investment powers (s 22), the Government Business Enterprises Act 1995 regarding transfers (s 31(1)), and the Crown Lands Act 1976 (s 31(1)). The Marine Farming Planning Act 1995 is referenced in s 42(2) regarding by-laws for recovery of costs in developing marine farming development plans. The Administrative Arrangements Act 1990 governs the assignment of administration until an order is made (s 56).

Schedule 3 ensures continuity of regulations and by-laws from the former Act (the Marine Act 1976) and provides for the transition of certificates, licences, permits, and staff. The former Authority’s assets and liabilities vest in the new Authority. Thus the Act both establishes a new statutory body and preserves the existing regulatory framework pending transition.

The Act has been amended on multiple occasions. The original Act (1997) was followed by amendments in 1999: No. 74 of 1999 substituted s 21 on authorised deposit-taking institution accounts, effective 1 January 2000. In 2000, No. 50 of 2000 made several changes: it inserted definitions for commercial purpose, commercial vessel, domestic commercial vessel, master, National Law, National Regulator, owner of a vessel (s 4), inserted s 19(1A) allowing engagement of port companies, expanded the immunity provisions in s 35 (adding subsections (2A)-(2E)), and amended s 40 (pilotage). No. 86 of 2000 amended references to State Service (effective 1 May 2001). No. 42 of 2001 added the definition of corporation (effective 15 July 2001).

In 2003, No. 42 of 2003 amended ss 25, 28, and 29 and repealed s 26 (effective 4 July 2003). No. 65 of 2003 amended s 23 regarding exemption from State charges (effective 1 July 2004). No. 8 of 2006 inserted the critical Division 2A (Abandoned, unseaworthy and sunken vessels) containing ss 38A-38E, amended the definition of unseaworthy in s 3, and amended s 39 regarding penalty provisions for regulations (effective 25 October 2006).

No. 72 of 2007 substantially replaced the infringement notice provisions: it substituted s 45(3) to require notices to comply with the Monetary Penalties Enforcement Act 2005, substituted s 46 to provide for payments into the Public Account, and repealed ss 47-52 (effective 28 April 2008). No. 50 of 2008 amended ss 24, 25, 27, 28, and repealed s 27 (effective 1 July 2010), updating financial reporting requirements.

No. 31 of 2013 was a major amendment: it added or substituted definitions relating to the National Law regime (s 35), amended s 5 to refine jurisdiction (adding paragraphs (ca), (cb)), amended s 6 on functions, substituted s 38C (commercial vessels over 15 metres), and made consequential amendments to ss 40 and 42 removing certain regulation-making powers now covered by the National Law (effective 2 September 2013). No. 20 of 2011 repealed s 34 (effective 31 August 2011). No. 40 of 2015 amended s 38D(4) to refer to the Unclaimed Money Act 2015 (effective 1 July 2016). No. 4 of 2017 amended s 46 (effective 1 July 2019). The Act also shows an amendment to s 3 by No. 31 of 2013 s 35 for several definitions, and to s 8 by No. 31 of 2013 s 35, though the text of s 8 itself appears unchanged in the provided version.

The Act itself does not refer to any specific case law. The source text does not name or describe any decided cases. The Act provides for litigation in several contexts: proceedings by or against the Authority (s 38 provides presumptions in such proceedings), applications to the Supreme Court for seizure and disposal orders (s 38D), and enforcement of debts (s 12 allows recovery of improper profits in a court of competent jurisdiction). The presumption provisions in s 38 apply in any proceedings by or against the Authority: proof is not required of the constitution of the Board, the appointment of any director, any resolution of the Board, or the presence of a quorum at any Board meeting, unless evidence to the contrary is given. Judicial notice must be taken of the seal of the Authority (s 36(2)) and of the official signatures of the chairperson, a director, or the chief executive officer (s 37). The Act also contemplates appeals under the by-laws (s 42(1)(g)) and appeals instituted under the former Act which continue under Schedule 3 clause 14. Beyond these procedural references, the Act does not cite judicial interpretations. Any analysis of how courts have applied the Act would require external research beyond the source provided.

Several provisions deserve close attention. Directors should be aware that they may be removed from office for being absent from four consecutive Board meetings without the Board’s permission (Schedule 1 clause 7(g)). This is a relatively low threshold - half a year of missed meetings could trigger removal. Additionally, directors who fail to disclose a pecuniary interest as required under Schedule 2 clause 6 may be removed under clause 7(b) and also face a criminal penalty of up to 10 penalty units or 3 months imprisonment (Sch 2 cl 6(1)). The disclosure obligation is broad, covering any direct or indirect pecuniary interest in a matter being considered or about to be considered that may conflict with proper performance of duties. There is no de minimis exception.

The immunity provisions in s 35 are generous but all are conditioned on good faith. A CEO, employee, port company, board member, or authorised person must have acted in good faith to be protected. The liability then attaches to the Authority under s 35(3). However, the Authority itself is immune from actions for any act done or omitted in relation to any defect in equipment or facility provided for the operation or safety of vessels (s 35(4)), and for any act done or omitted in relation to any service provided for the operation or safety of vessels (s 35(5)). This means a person injured by defective safety equipment or a negligent safety service may have no recourse against the Authority at all.

Vessel owners should note that the Authority can recover costs of seizure and disposal from the owner even if the proceeds of sale are insufficient (s 38D(5)). There is no cap on this liability. The owner may also face daily penalties for continuing offences under s 38B(4) and s 38E(2) - up to 5 penalty units per day, which can accumulate quickly.

The Act gives the Authority broad power to make by-laws that are not statutory rules under the Rules Publication Act 1953 but are still subordinate legislation (s 42(4)). This means by-laws may not be subject to the same parliamentary scrutiny as statutory rules, yet they can create offences. The by-laws can adopt or incorporate future documents, standards, rules or codes (s 42(3)), so operators must monitor external documents that may be incorporated by reference.

The definition of vessel includes “any other prescribed craft, or any other craft of a prescribed class, used for recreational purposes” (s 3). This allows the regulations or by-laws to expand the scope of regulation to novel watercraft not captured by the National Law definition. The Authority’s jurisdiction under s 5 explicitly excludes vessels within the meaning of the National Law (except as delegated), but the definition of vessel for the Act’s purposes is broader, potentially capturing recreational craft not covered by the National Law.

Another trap: infringement notices under s 45 cannot relate to four or more offences. A single notice for three or fewer offences is permissible, but if an authorised person issues a notice for four or more, it may be invalid. Also, a person under 16 years cannot be served an infringement notice (s 45(1)), so enforcement against minors must proceed by other means.

The Act’s commencement depends on proclamation (s 2). Users should verify the actual commencement date. The transfer day under s 31 also depends on a Ministerial determination. Transitional provisions in Schedule 3 impose time limits: former regulations and by-laws continued only until 31 December 2000 (Sch 3 cl 8), and exemption certificates continued for up to two years (Sch 3 cl 9(3)). Licences and permits continued for 12 months (Sch 3 cl 10), pilot appointments for 6 months (Sch 3 cl 11). Those periods have long expired, but practitioners dealing with old certificates should check whether they have been renewed or replaced under the new regime.

Finally, the definition of unseaworthy for commercial vessels includes the absence of a current certificate of survey (s 38B(1)(c)). A commercial vessel without a certificate is automatically unseaworthy, regardless of its actual condition. For non-commercial vessels, unseaworthiness requires certification by a marine surveyor or naval architect (s 38B(1)(d)). This distinction means that the Authority can act more swiftly against commercial vessels without a survey certificate.

Compliance with the Act requires different actors to take specific steps. For directors of the Authority, the primary obligations are to act honestly (s 10(1)) and with the care and diligence expected of a corporate director (s 10(2)). Directors must avoid using office or information for improper advantage (s 11) and must disclose any pecuniary interest in matters before the Board (Sch 2 cl 6). To avoid removal, directors should not miss four consecutive Board meetings without permission (Sch 1 cl 7(g)). The CEO must disclose any direct or indirect pecuniary interest in any business or body corporate to the Board as soon as practicable after acquiring it (s 18). The CEO must also perform delegated functions and exercise powers as granted (s 17).

The Board as a whole must ensure the Authority performs its functions and that its business and affairs are managed in accordance with sound commercial practice (s 13). The Board must prepare financial statements each financial year and forward them to the Auditor-General in accordance with the Audit Act 2008 (s 25(1)). The Board must also prepare an annual report containing the financial statements, the Auditor-General’s opinion, a report on operations, and any other information required by the Minister or considered appropriate (s 28). The annual report must be provided to the Minister, the Treasurer, and the Auditor-General (s 28(3)), and the Minister must table it in Parliament within four months after the end of the financial year (s 29(1)). The Authority must keep accounting records that correctly record and explain its transactions and financial position, kept in a manner that allows true and fair accounts to be prepared, complies with Australian Accounting Standards (subject to any Treasurer’s direction), and complies with any Treasurer’s direction (s 24). The funds of the Authority must be applied only to paying expenses and remuneration (s 20(2)).

The Authority must comply with any Ministerial requirement to provide information relating to its affairs or performance (s 30). If the Authority engages a port company to perform functions, it should ensure the engagement is in writing and that the port company understands the scope of its delegated powers and the good faith requirement for immunity. The Authority should maintain a register of delegations made under s 7 and s 14.

Vessel owners must ensure their vessels are not unseaworthy. For commercial vessels, this means holding a current certificate of survey (s 38B(1)(c)). For recreational vessels, owners should ensure proper manning, provisioning, and loading, and avoid overloading (s 38B(1)(a)-(b)). If the Authority serves a notice requiring the vessel to be made seaworthy, relocated, or moved from a wharf or mooring, the owner must comply within the specified period (s 38B(4), s 38E(2)). Owners should also be aware that a vessel longer than 15 metres that has been used for commercial purposes before the commencement of s 38C may not be used for recreational purposes unless the Authority otherwise determines (s 38C). This restriction may affect owners converting commercial vessels to recreational use.

Port companies engaged by the Authority should ensure they have documented the terms of engagement and any delegated functions. Their board members and employees should act in good faith, as the statutory immunity under s 35(2A)-(2C) depends on that condition. Persons authorised by the Authority under s 44 should operate within the scope of their appointment and ensure any infringement notices they serve comply with the Monetary Penalties Enforcement Act 2005 and do not relate to four or more offences (s 45). The Authority should periodically review its by-laws to ensure consistency with the National Law and any Treasurer’s directions on financial matters. Compliance with Australian Accounting Standards is mandatory unless the Treasurer directs otherwise (s 24(2)(c), s 25(3)(b)).