Marine (Drug, Alcohol and Pollution Control) Act 1988

Part 1—Preliminary

S. 1
substituted by No. 65/2010 s. 376.

1 Purpose

The purpose of this Act is to provide for safe marine operations in Victoria by—

(a) prohibiting masters and other persons involved in vessel operations from being under the influence of prescribed drugs or impaired by alcohol when undertaking those vessel operations; and

S. 1(b) amended by No. 34/2023 s. 127(Sch. 1 item 6.1).

(b) allocating roles, responsibilities and liabilities to Safe Transport Victoria and others to ensure there is a capacity and obligation to respond to marine incidents that have the potential to result in pollution.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Definitions

(1) In this Act—

S. 3(1) def. of accompany-ing operator offence inserted by No. 23/2001 s. 17.

accompanying operator offence means an offence under section 28(1) which is committed by a person who is taken to be in charge of a vessel by reason of the operation of section 27(1AAA);

S. 3(1) def. of approved health professional inserted by No. 14/2000 s. 27(1), amended by Nos 97/2005 s. 182(Sch. 4 item 34(a)), 13/2010 s. 51(Sch. item 35.1), 25/2025 s. 61.

approved health professional means—

(a) a person registered under the Health Practitioner Regulation National Law—

(i) to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student); and

(ii) in the registered nurses division of that profession; or

(b) a person approved under subsection (4) to take a blood sample for the purposes of Part 4; or

(c) a person or a member of a class of person prescribed by the regulations;

S. 3(1) def. of Australian Builders Plate Standard inserted by No. 17/2009 s. 3(1), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of Australian fishing vessel repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)), new def. of Australian fishing vessel inserted by 66/2012 s. 3(3), repealed by No. 36/2013 s. 84(1)(a).

S. 3(1) def. of Board repealed by No. 77/2001 s. 3(a).

S. 3(1) def. of breath analysing instrument inserted by No. 17/1994 s. 15.

breath analysing instrument has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of certificate of competency inserted by No. 9/2004 s. 3(1)(a), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)), new def. of certificate of competency inserted by 66/2012 s. 3(3), substituted by No. 36/2013 s. 84(1)(b).

certificate of competency has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law;

S. 3(1) def. of certificate of survey inserted by No. 9/2004 s. 3(1)(a), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of channel operator inserted by No. 82/1995 s. 153(1), amended by No. 45/2010 s. 44(a).

channel operator has the same meaning as in the Port Management Act 1995;

S. 3(1) def. of Chief Executive Officer of the Victorian Institute of Forensic Medicine inserted by No. 34/2024 s. 54(2).

Chief Executive Officer of the Victorian Institute of Forensic Medicine means the Chief Executive Officer within the meaning of the Victorian Institute of Forensic Medicine Act 2024;

S. 3(1) def. of coastal waters repealed by No. 77/2001 s. 22(a).

S. 3(1) def. of commercial marine operations inserted by No. 17/2009 s. 5, repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of commercial vessel inserted by No. 66/2012 s. 3(3), repealed by No. 36/2013 s. 84(1)(a).

corresponding law means a law that is declared under subsection (3)(a) to be a corresponding law;

S. 3(1) def. of dentist inserted by No. 66/2012 s. 3(3).

dentist means a person registered under the Health Practitioner Regulation National Law—

(a) to practise in the dental profession (other than as a student); and

(b) in the dentists division of that profession;

S. 3(1) def. of Department inserted by No. 78/2011 s. 44(a), amended by Nos 70/2013 s. 4(Sch. 2 item 29), 25/2025 s. 106(Sch. 1 item 25).

Department means the Department of Transport and Planning;

S. 3(1) def. of Director inserted by No. 77/2001 s. 3(b), substituted by No. 6/2010 s. 201(1)
(Sch. 5 item 1(a)) (as amended by No. 45/2010 s. 20), repealed by No. 34/2023 s. 127(Sch. 1 item 6.2(a)).

S. 3(1) def. of Director of the Victorian Institute of Forensic Medicine inserted by No. 14/2000 s. 27(1), amended by No. 65/2010 s. 377(1)(b), repealed by No. 34/2024 s. 54(1).

S. 3(1) def. of domestic commercial vessel inserted by No. 36/2013 s. 84(1)(c).

domestic commercial vessel has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law;

S. 3(1) def. of drug inserted by No. 66/2012 s. 3(3).

drug has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of fishing vessel repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)), new def. of fishing vessel inserted by 66/2012 s. 3(3), repealed by No. 36/2013 s. 84(1)(a).

S. 3(1) def. of government vessel repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)), new def. of government vessel inserted by No. 66/2012 s. 3(3), repealed by No. 36/2013 s. 84(1)(a).

S. 3(1) def. of harbour master inserted by No. 82/1995 s. 153(1), substituted by No. 9/2004 s. 3(1)(b), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of harbour master licence inserted by No. 9/2004 s. 3(1)(a), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of hire and drive vessel substituted by No. 36/2013 s. 84(1)(d).

hire and drive vessel has the same meaning as in the Marine Safety Act 2010;

S. 3(1) def. of licensed harbour master inserted by No. 82/1995 s. 153(1), amended by No. 77/2001 s. 31(1)(a), substituted by No. 9/2004 s. 3(1)(c), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of local authority amended by Nos 77/2001 s. 16(1)(a)(b), 85/2003 s. 34(1)(a), 45/2010 s. 44(b), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of local port inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(c).

local port has the same meaning as in the Port Management Act 1995;

S. 3(1) def. of local port manager inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(d).

local port manager means, in relation to a local port, the person or body appointed under section 44A of the Port Management Act 1995 as the port manager of that port;

S. 3(1) def. of mandatory marine safety decision inserted by No. 6/2010 s. 201(1)
(Sch. 5 item 1(b)) (as amended by No. 45/2010 s. 20), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of marine incident inserted by No. 65/2010 s. 377(1)(e) (as amended by No. 78/2011 s. 35(2)).

marine incident has the same meaning as it has in the Marine Safety Act 2010;

S. 3(1) def. of marine infringement substituted by No. 77/2001 s. 22(b), amended by Nos 9/2004 s. 3(1)(d)(i)(ii), 45/2010 s. 44(e), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of marine licence inserted by No. 65/2010 s. 377(1)(e) (as amended by No. 78/2011 s. 35(2)).

marine licence has the same meaning as it has in the Marine Safety Act 2010;

master, in relation to a vessel, means a person (other than a person who is acting as the pilot of that vessel) having command or charge of the vessel;

S. 3(1) def. of member of the police force inserted by No. 9/2004 s. 3(1)(a), repealed by No. 37/2014 s. 10(Sch. item 106.1(b)).

S. 3(1) def. of National Regulator inserted by No. 36/2013 s. 84(1)(c).

National Regulator means the National Marine Safety Regulator within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law;

S. 3(1) def. of navigation aid inserted by No. 82/1995 s. 153(1), substituted by No. 77/2001 s. 22(c), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of operator licence inserted by No. 93/2000 s. 3(a), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

owner, in relation to a vessel, includes the charterer and any person having possession of the vessel;

S. 3(1) def. of permissible non-prescription drug inserted by No. 66/2012 s. 3(3).

permissible non-prescription drug has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of pharmacist inserted by No. 66/2012 s. 3(3).

pharmacist means a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student);

S. 3(1) def. of pilot amended by No. 9/2004 s. 3(1)(e), substituted by No. 66/2012 s. 3(1).

pilot has the same meaning as in the Marine Safety Act 2010;

S. 3(1) def. of pilotage services inserted by No. 28/1999 s. 4,
repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of pilotage services provider inserted by No. 28/1999 s. 4, amended by Nos 77/2001 s. 31(1)(a), 34/2023 s. 127(Sch. 1 item 6.2(b)).

pilotage services provider means a person registered by Safe Transport Victoria under Part 3B to provide pilotage services;

S. 3(1) def. of pilot exempt master repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 106.1(a)).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3(1) def. of port inserted by No. 82/1995 s. 153(1).

port includes any of the following waters, or any part of those waters—

(a) any harbour or haven, whether natural or artificial;

(b) any estuary, channel, river, creek or roadstead;

(c) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers;

S. 3(1) def. of Port Authority repealed by No. 82/1995 s. 153(2).

S. 3(1) def. of port corporation inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(f), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of port management body inserted by No. 9/2004 s. 3(1)(a), amended by Nos 45/2010 s. 44(g)(h), 38/2011 s. 36, 10/2016 ss 167, 179(Sch. 1 item 5.1(b)), 19/2022 s. 93(a).

port management body means—

(a) in relation to the port of Melbourne, Ports Victoria when it is performing functions and exercising powers in the port of Melbourne;

(b) in relation to—

(i) the waters declared under section 5 of the Port Management Act 1995 to be the port of Geelong, Ports Victoria, or, if there is an agreement with a channel operator in relation to those waters, that channel operator; and

(ii) the waters declared under section 5 of the Port Management Act 1995 to be the port of Portland, Ports Victoria, or, if there is an agreement with a channel operator in relation to those waters, that channel operator; and

(iii) port of Hastings waters, Ports Victoria, or, if there is an agreement with a channel operator in relation to those waters, that channel operator;

S. 3(1) def. of port of Melbourne inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(i).

port of Melbourne has the same meaning as in the Port Management Act 1995;

S. 3(1) def. of Port of Melbourne Corporation inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(j), repealed by No. 10/2016 s. 179(Sch. 5 item 5.1(c)).

S. 3(1) def. of port of Melbourne waters inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(k), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of port waters inserted by No. 82/1995 s. 153(1), amended by No. 45/2010 s. 44(l).

port waters has the same meaning as in the Port Management Act 1995;

S. 3(1) def. of Ports Victoria inserted by No. 19/2022 s. 93(c).

Ports Victoria has the same meaning as in section 3 of the Transport Integration Act 2010;

S. 3(1) def. of prescribed concentration of alcohol substituted by No. 93/2000 s. 3(b) (as amended by No. 23/2001 s. 23), amended by Nos 90/2001 s. 3(1)(a), 94/2003 s. 34(1)(a)(b), 66/2012 s. 3(2), 36/2013 s. 84(1)(e), 35/2019 s. 9.

prescribed concentration of alcohol means—

(a) in the case of a person who is operating a vessel underway, or is the master of a vessel underway or at anchor, any concentration of alcohol present in the blood or breath of that person, if either or both of the following apply—

(i) the person is under the age of 21 years;

(ii) the vessel is a domestic commercial vessel; and

(ab) in the case of a person who is a pilot of a vessel underway or at anchor, any concentration of alcohol present in the blood or breath of that person; and

(b) in the case of any other person—

(i) a concentration of alcohol present in the blood of that person of 0⋅05 grams per 100 millilitres of blood; or

(ii) a concentration of alcohol present in the breath of that person of 0⋅05 grams per 210 litres of exhaled air;

S. 3(1) def. of prescribed concentration of drugs inserted by No. 66/2012 s. 3(3).

prescribed concentration of drugs has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of prescribed illicit drug inserted by No. 66/2012 s. 3(3).

prescribed illicit drug has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of prescription drug inserted by No. 66/2012 s. 3(3).

prescription drug has the same meaning as in the Road Safety Act 1986;

S. 3(1) def. of recreational vessel substituted by No. 36/2013 s. 84(1)(f).

recreational vessel has the same meaning as in the Marine Safety Act 2010;

S. 3(1) def. of registered medical practitioner inserted by No. 23/1994 s. 118(Sch. 1 item 34.1), amended by No. 97/2005 s. 182(Sch. 4 item 34(b)), substituted by No. 13/2010 s. 51(Sch. item 35.2).

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

S. 3(1) def. of registered recreational vessel inserted by No. 65/2010 s. 377(1)(e) (as amended by No. 78/2011 s. 35(2)).

registered recreational vessel has the same meaning as it has in the Marine Safety Act 2010;

S. 3(1) def. of regulated hire and drive vessel inserted by No. 90/2001 s. 3(1)(b), substituted by No. 65/2010 s. 377(1)(c).

regulated hire and drive vessel has the same meaning as it has in the Marine Safety Act 2010;

S. 3(1) def. of regulated recreational vessel inserted by No. 93/2000 s. 3(a), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of relevant marine safety law inserted by No. 17/2009 s. 5, amended by Nos 6/2010 s. 201(1)
(Sch. 5 item 1(c)) (as amended by No. 45/2010 s. 20), 45/2010 s. 44(m), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of Safe Transport Victoria inserted by No. 34/2023 s. 127(Sch. 1 item 6.2(c)).

Safe Transport Victoria has the same meaning as in section 3 of the Transport Integration Act 2010;

S. 3(1) def. of Secretary inserted by No. 78/2011 s. 44(a).

Secretary means the Secretary to the Department;

S. 3(1) def. of speed repealed by No. 77/2001 s. 22(a).

State waters means—

(a) the territorial sea adjacent to the State; and

(b) the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State; and

(c) waters within the limits of the State;

S. 3(1) def. of trading vessel repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)), new def. of trading vessel inserted by No. 66/2012 s. 3(3), repealed by No. 36/2013 s. 84(1)(a).

S. 3(1) def. of transport safety infringement inserted by No. 65/2010 s. 377(1)(e) (as amended by No. 78/2011 s. 35(2)).

transport safety infringement has the same meaning as it has in section 228S of the Transport (Compliance and Miscellaneous) Act 1983;

S. 3(1) def. of Uniform Shipping Laws Code substituted by No. 77/2001 s. 22(d), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)).

S. 3(1) def. of vessel amended by No. 9/2004 s. 3(1)(f)(i)(ii), substituted by No. 78/2011 s. 44(b).

vessel has the same meaning as it has in the Marine Safety Act 2010;

S. 3(1) def. of Victorian Marine Pollution Contingency Plan inserted by No. 82/1995 s. 153(1), amended by Nos 77/2001 s. 18(a)(b), 73/2013 s. 96, 36/2018 s. 38(1), 35/2019 s. 10.

Victorian Marine Pollution Contingency Plan means the plan (as in force from time to time) established under arrangements developed by Commonwealth, State and Territory Ministers in connection with the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances and in accordance with the state emergency management plan prepared under Part 6A of the Emergency Management Act 2013;

S. 3(1) def. of Victorian Ports Corporation (Melbourne) inserted by No. 10/2016 s. 179(Sch. 1 item 5.1(a)), repealed by No. 19/2022 s. 93(b).

S. 3(1) def. of Victorian Channels Authority inserted by No. 82/1995 s. 153(1), substituted as Victorian Regional Channels Authority by No. 85/2003 s. 34(2)(a), substituted by No. 45/2010 s. 44(n), repealed by No. 19/2022 s. 93(b).

S. 3(1) def. of waterway manager inserted by No. 9/2004 s. 3(1)(a), substituted by No. 65/2010 s. 377(1)(d).

waterway manager has the same meaning as it has in the Marine Safety Act 2010.

S. 3(2) substituted by No. 90/2001 s. 3(2), repealed by No. 65/2010 s. 377(2).

(3) The Minister may, by Order published in the Government Gazette—

(a) declare a law of the Commonwealth or another State or a Territory of the Commonwealth which creates an offence substantially similar to any one of the offences created by section 28 to be a corresponding law; or

S. 3(3)(b) substituted by No. 9/2004 s. 3(2), repealed by No. 65/2010 s. 377(2).

S. 3(3)(c) repealed by No. 36/2013 s. 84(2).

S. 3(3A) inserted by No. 9/2004 s. 3(3), amended by No. 30/2010 s. 90,
repealed by No. 65/2010 s. 377(2).

S. 3(4) inserted by No. 14/2000 s. 27(2), amended by No. 34/2024 s. 54(3).

(4) The Chief Executive Officer of the Victorian Institute of Forensic Medicine may, in writing, approve a person to take blood samples for the purposes of Part 4 if the Chief Executive Officer is of the opinion that the person has the appropriate qualifications, training and experience to take such samples.

S. 3(5) inserted by No. 93/2009 s. 3, repealed by No. 3/2025 s. 3(Sch. 1 item 5.1).

S. 3(6) inserted by No. 65/2010 s. 375(2).

(6) On and from the commencement of section 375 of the Marine Safety Act 2010, a reference to the Marine Act 1988 in any Act (other than in the Marine Safety Act 2010) or in any other instrument made under any Act or in any other document of any kind, must be read and construed as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988, unless the context otherwise requires.

S. 3A inserted by No. 6/2010 s. 24(5)(Sch. 1 item 6) (as amended by No. 45/2010 s. 5).

3A Transport Integration Act 2010

This Act is transport legislation within the meaning of the Transport Integration Act 2010.

4 Act does not apply to defence force vessels

This Act does not apply to or in relation to a vessel belonging to the naval, military or air forces of the Commonwealth or of any other country.

5 Act binds the Crown

(1) This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act makes the Commonwealth or a State or Territory of the Commonwealth liable to be prosecuted for an offence.

(3) Subsection (2) does not affect any liability of any servant or agent of the Commonwealth or of a State or Territory of the Commonwealth to be prosecuted for an offence.

S. 6 amended by No. 20/1993 s. 16, substituted by No. 36/2013 s. 85.

6 Application of Act

(1) Unless specifically provided otherwise by a provision of this Act, this Act applies to and in relation to the following vessels, and the owner, master and crew of any such vessel—

(a) a vessel within State waters; and

(b) a vessel connected with Victoria, wherever it may be.

(2) For the purpose of this section, a vessel is connected with Victoria if it—

(a) is registered or deemed to be registered under the Shipping Registration Act 1981 of the Commonwealth with a home port in Victoria; or

(b) is owned by a body corporate that is established under Victorian law or that has its principal office or place of business in Victoria, or is in the possession of such a body corporate by virtue of a charter; or

(c) is owned by any person whose chief office or place of business in respect of the management of the vessel is in Victoria, or is in the possession of such a person by virtue of a charter; or

(d) is registered or licensed or required to be registered or licensed under Victorian law.

Pt 2 (Heading and ss 7−14) amended by Nos 44/1989 s. 41(Sch. 2 item 26.1), 20/1993 s. 17, 82/1995 s. 154(1), 51/1996 s. 14(1)(2), 77/2001 s. 31(1)(b)(c), 9/2004 ss 4, 5, 17/2009 s. 3(2), 93/2009 s. 4, repealed by No. 65/2010 s. 390(1).

Pt 3 (Heading and ss 15−26) amended by Nos 20/1993 ss 18–20, 82/1995 ss 154(2)−(4), 155, 156(1)(2), 157, 158, 51/1996 ss 14(3)−(10), 93/2000 ss 4−6, 77/2001 ss 23, 24, 31(1)(b)–(e), 90/2001 ss 4, 7(1), 85/2003 s. 34(2)(b), 9/2004 ss 6, 7, 25(Sch. item 1), 68/2009 s. 97(Sch. item 84.1), 45/2010 s. 45, repealed by No. 65/2010 s. 390(1).

Pt 3A (Heading and ss 26A−26I) inserted by No. 82/1995 s. 159, amended by Nos 51/1996 s. 18, 77/2001 s. 31(1)(b), 9/2004 ss 8, 9, 45/2010 ss 46, 47, 38/2011 ss 37, 38, repealed by No. 65/2010 s. 390(1).

Pt 3B (Heading and ss 26J–26T) inserted by No. 28/1999 s. 5, amended by Nos 77/2001 s. 31(1)
(b)(f)(g), 10/2004 s. 15(Sch. 1 item 18),
repealed by No. 65/2010 s. 390(1).

Part 4—Offences involving alcohol or other drugs

27 Interpretation

S. 27(1) amended by No. 94/2003 s. 34(2)(a)(b), substituted by No. 66/2012 s. 4(1).

(1) For the purposes of this Part—

(a) if it is established that at any time within 3 hours after an alleged offence against paragraph (a) or (b) of section 28(1) a certain concentration of alcohol was present in the blood or breath of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the person's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed; and

(b) if it is established that at any time within 3 hours after an alleged offence against paragraph (ba) of section 28(1) a certain drug was present in the body of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's body at the time at which the offence is alleged to have been committed; and

(c) if it is established that at any time within 3 hours after an alleged offence against paragraph (bb) of section 28(1) a certain drug was present in the blood or oral fluid of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's blood or oral fluid at the time at which the offence is alleged to have been committed.

S. 27(1AA) inserted by No. 93/2000 s. 7, repealed by No. 65/2010 s. 378(1), new s. 27(1AA) inserted by No. 66/2012 s. 4(1), amended by No. 6/2018 s. 68(Sch. 2 item 85.1).

(1AA) For the purposes of an alleged offence against paragraph (ba) of section 28(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or urine taken from the person charged was not due solely to the consumption or use of that drug after operating a vessel or being a master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn or affirmed evidence given by him or her which is corroborated by the material evidence of another person.

S. 27(1AB) inserted by No. 66/2012 s. 4(1).

(1AB) For the purposes of sections 31AA and 31AB, a person operating a vessel or a master or pilot of a vessel is not to be taken to be impaired unless—

(a) in the case of a person operating a vessel, his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to operate a vessel properly; or

(b) in the case of a master or pilot of a vessel, his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to direct the proper operation of the vessel.

S. 27(1A) inserted by No. 20/1993 s. 4(1), amended by Nos 94/2003 ss 34(3), 35(1), 65/2010 s. 378(2), 66/2012 s. 4(2), 6/2018 s. 68(Sch. 2 item 85.1).

(1A) For the purposes of an alleged offence against paragraph (e) or (f) of section 28(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by an analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after operating a vessel or being a master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn or affirmed evidence given by him or her which is corroborated by the material evidence of another person.

S. 27(1B) inserted by No. 66/2012 s. 4(3), amended by No. 6/2018 s. 68(Sch. 2 item 85.1).

(1B) For the purposes of an alleged offence against paragraph (g) or (h) of section 28(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid provided by, or taken from, the person charged was not due solely to the consumption or use of that drug after operating a vessel or being a master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn or affirmed evidence given by him or her which is corroborated by the material evidence of another person.

S. 27(1AAA) inserted by No. 23/2001 s. 18, substituted by No. 65/2010 s. 378(3).

(1AAA) A person is taken to be the master of a vessel under way, if that person is accompanying a person who is in control of the vessel, for the purpose of enabling the person who is in control of the vessel to comply with—

(a) any condition of the marine licence of the person; or

(b) any requirement of regulations made under this Act or the Marine Safety Act 2010—

that the person be accompanied by a licensed master while in control of the vessel.

S. 27(2) substituted by No. 20/1993 s. 4(2).

(2) If a person who is convicted of an offence against—

(a) any one of the paragraphs of section 28(1); or

(b) section 31A(2) as in force from time to time—

has at any time been found guilty or been convicted of—

(c) an offence against the same or any other of those paragraphs or that section; or

S. 27(2)(d) amended by No. 93/2009 s. 47(1)(a).

(d) an offence against any previous enactment corresponding to any of those paragraphs or that section or any corresponding law; or

S. 27(2)(e) inserted by No. 93/2009 s. 47(1)(b), amended by No. 56/2013 s. 29.

(e) an offence against section 318(1) of the Crimes Act 1958 (in relation to a vessel) where the culpable driving is constituted by behaviour referred to in section 318(2)(c) or (d) of that Act—

the conviction for the offence against that paragraph or section is to be taken to be a conviction for a subsequent offence.

S. 27(2A) inserted by No. 66/2012 s. 4(4).

(2A) An approval or authority given under or for the purposes of section 31 or 31AA(3) by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.

S. 27(2B) inserted by No. 66/2012 s. 4(4), amended by No. 37/2014 s. 10(Sch item 106.2).

(2B) For the avoidance of doubt it is declared that nothing in this Part requires a person who is in a dwelling to allow a police officer to enter that dwelling without a warrant.

S. 27(3) substituted by No. 65/2010 s. 378(4).

(3) In this Part—

S. 27(3) def. of at anchor inserted by No. 66/2012 s. 4(5)(a).

at anchor, in relation to a vessel, does not include a vessel properly made fast at a registered mooring or at anchor at a registered mooring;

operate, in relation to a vessel, means to facilitate or control the movement or navigation of a vessel or a thing connected to a vessel;

registered mooring means any floating fixture, marker, pile, buoy, cable or chain attached to anchors or a weight the position of which is either registered with, or recorded by, the local port manager, port management body or waterway manager and compliant with any applicable rules of the local port manager, port management body or waterway manager;

S. 27(3) def. of vessel under way substituted as def. of vessel underway by No. 66/2012 s. 4(5)(b).

vessel underway, in relation to a vessel, includes any period when the vessel is being secured, moored or retrieved from the water but does not include a vessel that is—

(a) at anchor; or

(b) properly made fast to the shore or properly made fast at a registered mooring or at anchor at a registered mooring; or

(c) aground; or

(d) ashore.

28 Offences involving alcohol or other drugs

(1) A person is guilty of an offence if—

S. 28(1)(a) amended by No. 65/2010 s. 379(1)(a), substituted by No. 66/2012 s. 5(1).

(a) the person operates a vessel or is the master or pilot of a vessel underway or at anchor while under the influence of alcohol or any other drug to such an extent as to—

(i) in the case of a person operating a vessel, be incapable of having proper control of the vessel; or

(ii) in the case of a master or pilot of a vessel, be incapable of directing the proper operation of the vessel; or

S. 28(1)(b) amended by Nos 23/2001 s. 19(a), 94/2003 s. 34(4), 65/2010 s. 379(1)(a), 66/2012 s. 5(2).

(b) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or

S. 28(1)(ba) inserted by No. 66/2012 s. 5(3).

(ba) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while impaired by a drug; or

S. 28(1)(bb) inserted by No. 66/2012 s. 5(3).

(bb) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or

S. 28(1)(c) amended by No. 17/1994 s. 16(a).

(c) the person refuses to undergo a preliminary breath test in accordance with section 29 when required under that section to do so; or

S. 28(1)(ca) inserted by No. 66/2012 s. 5(4).

(ca) the person refuses to undergo an assessment of drug impairment in accordance with section 31AA when required under that section to do so or refuses to comply with any other requirement made under section 31AA(1); or

S. 28(1)(cb) inserted by No. 66/2012 s. 5(4).

(cb) the person refuses or fails to comply with a request or signal to go to a preliminary breath testing station, given under section 30(3); or

S. 28(1)(d) substituted by No. 17/1994 s. 16(b), amended by No. 66/2012 s. 5(5).

(d) the person refuses to comply with a requirement made under section 31(1), (2), (2AA), (2A) or (9A); or

S. 28(1)(e) substituted by No. 20/1993 s. 5(1), amended by Nos 46/2002 s. 15, 65/2010 s. 379(1)(b), 66/2012 s. 5(6)(a).

(e) within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor, the person furnishes a sample of breath for analysis by a breath analysing instrument under section 31 and—

S. 28(1)(e)(i) amended by No. 94/2003 ss 34(5), 35(2).

(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her breath; and

S. 28(1)(e)(ii) amended by Nos 94/2003 ss 34(5), 35(2), 65/2010 s. 379(1)(c), 66/2012 s. 5(6)(b).

(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after operating the vessel or being the master or pilot of the vessel underway or at anchor; or

S. 28(1)(ea) inserted by No. 66/2012 s. 5(7).

(ea) the person refuses to comply with a requirement made under section 31AB(1); or

S. 28(1)(eb) inserted by No. 66/2012 s. 5(7).

(eb) the person refuses to provide a sample of oral fluid in accordance with section 31AD or 31AE when required under that section to do so or refuses to comply with any other requirement made under that section; or

S. 28(1)(f) substituted by No. 20/1993 s. 5(1), amended by Nos 17/1994 s. 16(c), 65/2010 s. 379(1)(d), 66/2012 s. 5(8)(a)(b).

(f) the person has had a sample of blood taken from him or her in accordance with section 31, 31A, 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor and—

S. 28(1)(f)(i) amended by No. 23/2001 s. 19(b).

(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 32 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and

S. 28(1)(f)(ii) amended by Nos 65/2010 s. 379(1)(d), 66/2012 s. 5(8)(c).

(ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after operating the vessel or being the master or pilot of the vessel underway or at anchor; or

S. 28(1)(g) inserted by No. 66/2012 s. 5(9).

(g) within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor, the person provides a sample of oral fluid in accordance with section 31AE and—

(i) the sample has been analysed by a properly qualified analyst within the meaning of section 32B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and

(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating the vessel or being the master or pilot of the vessel underway or at anchor; or

S. 28(1)(h) inserted by No. 66/2012 s. 5(9).

(h) the person has had a sample of blood taken from him or her in accordance with section 31, 31A, 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor and—

(i) the sample has been analysed by a properly qualified analyst within the meaning of section 32 and the analyst has found at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and

(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating the vessel or being the master or pilot of a vessel underway or at anchor.

S. 28(1A) inserted by No. 49/2004 s. 3, amended by No. 66/2012 s. 5(10)(a).

(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (d), (ea) or (eb) of subsection (1) even if—

(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and

S. 28(1A)(ab) inserted by No. 66/2012 s. 5(10)(b).

(ab) in the case of an offence under paragraph (ca)—

(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and

(1A)(ab)(ii) amended by No. 37/2014 s. 10(Sch. item 106.2).

(ii) a police officer authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made; and

(b) in the case of an offence under paragraph (d)—

(i) a breath analysing instrument was not available at the place where the requirement was made at the time it was made; and

(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and

(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

S. 28(1A) (b)(iv) amended by No. 66/2012 s. 5(10)(c).

(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and

S. 28(1A)(c) inserted by No. 66/2012 s. 5(10)(d).

(c) in the case of an offence under paragraph (ea)—

(1A)(c)(i) amended by No. 37/2014 s. 10(Sch. item 106.2).

(i) the police officer requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

(1A)(c)(ii) amended by No. 37/2014 s. 10(Sch. item 106.2).

(ii) the police officer requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and

(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and

S. 28(1A)(d) inserted by No. 66/2012 s. 5(10)(d).

(d) in the case of an offence under paragraph (eb)—

(i) a prescribed device was not presented to the person at the time of the making of the requirement; and

(ii) a prescribed device was not available at the place or vessel where the requirement was made at the time it was made; and

(iii) a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made; and

(iv) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

(v) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.

S. 28(1B) inserted by No. 49/2004 s. 3.

(1B) To avoid doubt, in proceedings for an offence under paragraph (d) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(b)(i) or (ii) is not a reason of a substantial character for a refusal for the purposes of section 31(9).

S. 28(1C) inserted by No. 66/2012 s. 5(11).

(1C) To avoid doubt, in proceedings for an offence under paragraph (eb) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(d)(i), (ii) or (iii) is not a reason of a substantial character for a refusal for the purposes of section 31AE(12).

S. 28(2) amended by Nos 23/2001 s. 20(1), 65/2010 s. 379(2).

(2) A person who is guilty of an offence under subsection (1)(a) is liable—

(a) for a first offence, to a fine of not more than 25 penalty units or to imprisonment for not more than 3 months; and

S. 28(2)(b) substituted by No. 66/2012 s. 6(1).

(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and

S. 28(2)(c) inserted by No. 66/2012 s. 6(1).

(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.

S. 28(2A) inserted by No. 66/2012 s. 6(2).

(2A) A person who is guilty of an offence under paragraph (b), (e) or (f) of subsection (1) is liable—

(a) in the case of a first offence, to a fine of not more than 20 penalty units; and

(b) in the case of a second offence—

(i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol—

(A) in the person's blood was less than 0⋅15 grams per 100 millilitres of blood; or

(B) in the person's breath was less than 0⋅15 grams per 210 litres of exhaled air—

as the case requires; or

(ii) to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—

(A) in the person's blood was 0⋅15 grams or more per 100 millilitres of blood; or

(B) in the person's breath was 0⋅15 grams or more per 210 litres of exhaled air—

(c) in the case of any other subsequent offence—

(i) to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—

(A) in the person's blood was less than 0⋅15 grams per 100 millilitres of blood; or

(B) in the person's breath was less than 0⋅15 grams per 210 litres of exhaled air—

as the case requires; or

(ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—

(A) in the person's blood was 0⋅15 grams or more per 100 millilitres of blood; or

(B) in the person's breath was 0⋅15 grams or more per 210 litres of exhaled air—

as the case requires.

S. 28(3) amended by Nos 23/2001 s. 20(2), 65/2010 s. 379(2), 66/2012 s. 6(3)(a).

(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (cb), (d) or (ea) of subsection (1) is liable—

(a) for a first offence, to a fine of not more than 12 penalty units; and

S. 28(3)(b) substituted by No. 66/2012 s. 6(3)(b).

(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and

S. 28(3)(c) inserted by No. 66/2012 s. 6(3)(b).

(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.

S. 28(3A) inserted by No. 23/2001 s. 20(3), repealed by No. 65/2010 s. 379(3), new s. 28(3A) inserted by No. 66/2012 s. 6(4).

(3A) A person who is guilty of an offence under paragraph (bb), (eb), (g) or (h) of subsection (1) is liable—

(a) in the case of a first offence, to a fine of not more than 12 penalty units; and

(b) in the case of a second offence, to a fine of not more than 60 penalty units; and

(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units.

S. 28(3B) inserted by No. 66/2012 s. 6(4).

(3B) In proceedings for an offence under paragraph (ba) of subsection (1), proof that—

(a) the person operated a vessel or was the master or pilot of a vessel underway or at anchor; and

(b) one or more drugs were present in the person's body at the time at which he or she operated the vessel or was the master or pilot of the vessel underway or at anchor; and

(c) the behaviour of the person on an assessment of drug impairment carried out under section 31AA was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and

(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable—

(i) in the case of a person operating a vessel, to operate a vessel properly; or

(ii) in the case of a master or pilot of a vessel, direct the proper operation of the vessel—

is, in the absence of evidence to the contrary but subject to subsections (3C) and (3D), proof that the accused operated a vessel or was a master or pilot of a vessel underway or at anchor while impaired by a drug.

S. 28(3C) inserted by No. 66/2012 s. 6(4).

(3C) If on an analysis carried out in accordance with this Part, no drug other than a permissible non-prescription drug or a prescription drug was found present in the person's body, it is a defence to a charge under paragraph (ba) of subsection (1) for the person charged to prove that—

(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would, if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs, impair—

(ii) in the case of a master or pilot of a vessel, directing the proper operation of a vessel; and

(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.

S. 28(3D) inserted by No. 66/2012 s. 6(4).

(3D) In subsection (3C), advice means written or oral advice and includes anything written on a label accompanying the drug.

(4) It is a defence to a charge under subsection (1)(e) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.

S. 28(5) amended by No. 66/2012 s. 6(5).

(5) It is a defence to a charge under paragraph (f), (g) or (h) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result.

S. 28(5A) inserted by No. 20/1993 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 84.2).

(5A) In any proceedings for an offence under paragraph (e) or (f) of subsection (1) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 27(1A) but is otherwise inadmissible.

S. 28(6A) inserted by No. 66/2012 s. 6(6).

(6A) In any proceedings for an offence under paragraph (g) or (h) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 27(1B) but is otherwise inadmissible.

S. 28(6)(7) repealed by No. 65/2010 s. 379(3).

S. 28(8) inserted by No. 93/2000 s. 8.

(8) On convicting a person, or finding a person guilty, of an offence under subsection (1) the court must cause to be entered in the records of the court—

S. 28(8)(a) amended by No. 94/2003 s. 34(6).

(a) in the case of an offence under subsection (1)(b), the level of concentration of alcohol found to be present in that person's blood or breath; and

(b) in the case of an offence under subsection (1)(e), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and

(c) in the case of an offence under subsection (1)(f), the level of concentration of alcohol found to be present in the sample of blood.

S. 28(9) inserted by No. 66/2012 s. 6(7).

(9) If on a prosecution for an offence under paragraph (a) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (ba) of that subsection, the court may find the accused guilty of an offence under paragraph (ba) and punish the accused accordingly.

S. 28(10) inserted by No. 66/2012 s. 6(7).

(10) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.

S. 28A inserted by No. 93/2000 s. 9 (as amended by No. 23/2001 s. 24), amended by Nos 90/2001 s. 7(1), 65/2010 s. 380, substituted by No. 66/2012 s. 7.

28A Provisions about cancellation and disqualification

S. 28A(1) amended by No. 36/2013 s. 86(1).

(1) On convicting a person, or finding a person guilty of an offence under section 28(1)(b), (e) or (f) the court may where—

(a) the concentration of alcohol—

(i) in the blood of that person was less than 0⋅05 grams per 100 millilitres of blood; or

(ii) in the breath of that person was less than 0⋅05 grams per 210 litres of exhaled air—

(b) the offence is a first offence—

if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such time as the court thinks fit, not being more than 6 months.

S. 28A(2) amended by No. 36/2013 s. 86(2).

(2) Subject to subsection (3), on convicting a person, or finding a person guilty, of an offence under section 28(1)(b), (e) or (f), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than—

(a) in the case of a first offence, the period specified in Column 2 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule; and

(b) in the case of a subsequent offence, the period specified in Column 3 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule.

S. 28A(3) amended by No. 36/2013 s. 86(3).

(3) If a court finds a person guilty of an offence under section 28(1)(b), (e) or (f) but does not record a conviction, the court is not required to cancel a marine licence or disqualify the offender from obtaining one in accordance with subsection (2) if it appears to the court that at the relevant time the concentration of alcohol in the blood or breath of the offender—

(a) in the case of a person previously found guilty of an offence against any one of the paragraphs of section 28(1) or any previous enactment corresponding to any of those paragraphs or any corresponding law, was less than 0⋅05 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires); or

(b) in any other case, was less than 0⋅07 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires).

(4) Subsection (3)(b) does not apply to a person who, at the time the offence was committed, was under the age of 26 years.

S. 28A(5) amended by No. 36/2013 s. 86(4).

(5) On convicting a person, or finding a person guilty, of an offence under section 28(1)(a), (c), (cb) or (d), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than—

(a) in the case of a first offence, 2 years;

(b) in the case of a subsequent offence, 4 years.

S. 28A(6) amended by No. 36/2013 s. 86(5).

(6) On convicting a person, or finding a person guilty of an offence under section 28(1)(ba), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than—

(a) in the case of a first offence, 12 months; and

(b) in the case of a subsequent offence, 2 years.

S. 28A(7) amended by No. 36/2013 s. 86(6).

(7) On convicting a person, or finding a person guilty of an offence under section 28(1)(ca) or (ea), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than—

(a) in the case of a first offence, 2 years; and

(b) in the case of a subsequent offence, 4 years.

S. 28A(8) amended by No. 36/2013 s. 86(7).

(8) On convicting a person, or finding a person guilty of an offence under section 28(1)(eb), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than—

(a) in the case of a first offence, 6 months; and

(b) in the case of a subsequent offence, 12 months.

S. 28A(9) amended by No. 36/2013 s. 86(8).

(9) On convicting a person, or finding a person guilty of an offence under section 28(1)(bb), (g) or (h), the court must, if the offender holds a marine licence, cancel that licence and, whether or not the offender holds a marine licence, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than—

(a) in the case of a first offence, 3 months; and

(b) in the case of a subsequent offence, 6 months.

(10) Any period of suspension imposed on a person under section 28C must be deducted from the period of disqualification imposed on that person under this section.

(11) This section does not apply to a person who is convicted or found guilty of an accompanying operator offence.

S. 28AB inserted by No. 36/2013 s. 87.

28AB Recommendation about cancellation or disqualification—certificates of competency

(1) A court may recommend to the National Regulator or a delegate of the National Regulator that the National Regulator take any of the following actions in relation to a person convicted of an offence under section 28(1)—

(a) cancel a certificate of competency that the person holds;

(b) disqualify the person from obtaining a certificate of competency for a specified period.

(2) A recommendation must not be made under this section unless a similar action could be taken under section 28A to cancel a marine licence of a person convicted of the same offence or disqualify such a person from holding a marine licence.

(3) A court may make a recommendation under this section in addition to imposing any penalty for the offence concerned.

S. 28B inserted by No. 93/2000 s. 9 (as amended by No. 23/2001 s. 24).

28B Previous convictions

In determining for the purpose of section 28A(1) or (2) or section 28C whether an offence (in this section referred to as the relevant offence) is a first offence, any other offence in respect of which a conviction was recorded or a finding of guilt was made 10 years or more before the commission of the relevant offence is to be disregarded if not to do so would make the relevant offence a subsequent offence for the purpose of that provision.

S. 28C (Heading) amended by Nos 65/2010 s. 381(1), 66/2012 s. 8(1), substituted by No. 36/2013 s. 88(1).

S. 28C inserted by No. 93/2000 s. 9 (as amended by No. 23/2001 s. 24).

28C Immediate suspension of marine licence in certain circumstances

S. 28C(1) amended by Nos 90/2001 s. 7(1), 68/2009 s. 97(Sch. item 84.3), 65/2010 s. 381(2), 66/2012 s. 8(2)(b)–(d), 36/2013 s. 88(2), 37/2014 s. 10(Sch. item 106.2).

(1) If a person is charged by a police officer with an offence under—

S. 28C(1)(a) substituted by No. 94/2003 s. 34(7).

(a) section 28(1)(b), (e) or (f) where it is alleged that the concentration of alcohol—

S. 28C(1)(a)(i) amended by No. 66/2012 s. 8(2)(a).

(i) in the blood of that person was 0⋅10 grams or more per 100 millilitres of blood; or

S. 28C(1)(a)(ii) amended by No. 66/2012 s. 8(2)(a).

(ii) in the breath of that person was 0⋅10 grams or more per 210 litres of exhaled air; or

(b) section 28(1)(c), or (d)—

where the person was operating a vessel or the master or pilot of a vessel underway or at anchor, any police officer may, at any time after the filing or signing of the charge-sheet charging the offence in accordance with section 6 of the Criminal Procedure Act 2009 until the charge has been determined, give to the accused a notice containing the prescribed particulars informing the accused that his or her marine licence is immediately suspended until the charge has been determined and requiring the accused to surrender the licence document immediately to the person who gave the notice.

S. 28C(1A) inserted by No. 66/2012 s. 8(3), amended by Nos 36/2013 s. 88(3), 37/2014 s. 10(Sch. item 106.2).

(1A) If a person is charged by a police officer with an offence under paragraph (ba), (ca), (ea) or (eb) of section 28(1), any police officer may, at any time after the filing of the charge-sheet charging the offence until the charge has been determined, give to the accused a notice containing the prescribed particulars informing the accused that his or her marine licence is immediately suspended until the charge has been determined and requiring the accused to surrender immediately to the person who gave the notice the licence document.

S. 28C(2) amended by No. 37/2014 s. 10(Sch. item 106.2).

(2) For the purposes of this section a person is charged with an offence when a copy of the information that is signed by the police officer is given to the person.

S. 28C(3) amended by Nos 65/2010 s. 381(3), 66/2012 s. 8(4), 36/2013 s. 88(4).

(3) Immediately on the giving of a notice under subsection (1) or (1A), the marine licence of the accused is suspended until the charge has been determined by a court.

S. 28C(4) amended by Nos 77/2001 s. 31(1)(b), 36/2013 s. 88(5), 34/2023 s. 127(Sch. 1 item 6.3).

(4) A person who gives a notice under subsection (1) or (1A) must cause a copy of that notice to be sent immediately to Safe Transport Victoria.

(5) A person who, without just cause or excuse, refuses or fails to surrender a document as required by a notice under subsection (1) is guilty of an offence and liable to a penalty of not more than 5 penalty units.

(6) The accused has the burden of proving just cause or excuse.

S. 28D (Heading) amended by No. 65/2010 s. 382(1).

S. 28D inserted by No. 93/2000 s. 9 (as amended by No. 23/2001 s. 24).

28D Appeal to court against suspension of marine licence

(1) A person to whom a notice is given under section 28C(1) may appeal against that notice to the Magistrates' Court.

(2) A person who appeals under subsection (1) must give 14 days' written notice of the appeal (including particulars of any alleged exceptional circumstances) to the Chief Commissioner of Police and a registrar of the Magistrates' Court.

(3) In determining the appeal the court must hear any relevant evidence tendered either by the applicant or by the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the court.

(4) On an appeal under subsection (1) the court may make an order—

(a) confirming the notice; or

(b) cancelling the notice.

(5) The Magistrates' Court must not make an order under subsection (4) cancelling a notice unless it is satisfied that exceptional circumstances exist which justify the making of such an order.

S. 28D(6) amended by No. 65/2010 s. 382(2).

(6) If on the subsequent hearing of the charge the accused's marine licence is cancelled and the accused is disqualified from obtaining a marine licence for a specified time, the court must take into account, in fixing the period of disqualification, the period of suspension under section 28C.

S. 29 amended by Nos 20/1993 s. 6, 23/2001 s. 21, substituted by No. 65/2010 s. 383.

29 Preliminary breath tests

S. 29(1) amended by No. 37/2014 s. 10(Sch. item 106.2).

S. 29(1)(a) substituted by No. 66/2012 s. 9(1)(a).

(a) any person he or she finds to be operating a vessel; or

S. 29(1)(ab) inserted by No. 66/2012 s. 9(1)(a).

(ab) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or

S. 29(1)(b) amended by No. 66/2012 s. 9(1)(b).

(b) any person operating a vessel who has been requested or signalled to stop at or to go to a preliminary breath testing station under section 30(3); or

S. 29(1)(ba) inserted by No. 66/2012 s. 9(1)(c).

(ba) any person who is a master or pilot of a vessel who has been requested or signalled to stop at or to go to a preliminary breath testing station under section 30(3); or

S. 29(1)(c) amended by No. 66/2012 s. 9(1)(d).

(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours been operating a vessel or the master or pilot of a vessel underway or at anchor when it was involved in a marine incident; or

S. 29(1)(d) amended by Nos 66/2012 s. 9(1)(e), 37/2014 s. 10(Sch. item 106.2).

(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in a marine incident, if it has not been established to the satisfaction of the police officer which of the occupants was the person operating the vessel or the master or pilot of the vessel when it was involved in the marine incident—

to undergo a preliminary breath test by a prescribed device.

S. 29(2) amended by No. 37/2014 s. 10(Sch. item 106.2).

(2) A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the police officer.

S. 29(3) substituted by No. 66/2012 s. 9(2).

(3) A person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person was—

30 Preliminary breath testing stations

S. 30(1) amended by No. 37/2014 s. 10(Sch. item 106.3(a)).

(1) A police officer may set up a preliminary breath testing station on or in the vicinity of any State waters.

(2) A preliminary breath testing station—

S. 30(2)(a) amended by No. 66/2012 s. 10(1).

(a) consists of any facilities that are necessary to enable the making of preliminary breath tests or preliminary oral fluid tests in quick succession; and

(b) must be identified by suitable signs, lights or other devices.

S. 30(3) amended by Nos 65/2010 s. 384, 66/2012 s. 10(2), 37/2014 s. 10(Sch. item 106.3(a)).

(3) A police officer who is on duty and wearing uniform may request or signal any person operating a vessel or who is the master or pilot of a vessel underway, at anchor or aground to go to a preliminary breath testing station.

S. 30(4) amended by No. 37/2014 s. 10(Sch. item 106.3(b)).

(4) Police officers who are on duty at a preliminary breath testing station must make sure that no person is detained there any longer than is necessary.

31 Breath analysis

S. 31(1) amended by Nos 20/1993 s. 7(1), 17/1994 s. 17(1)(2), 94/2003 ss 34(8), 35(3), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(a)(i)).

(1) Subsection (1A) applies if a person undergoes a preliminary breath test when required to do so by a police officer under section 29 and—

S. 31(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.4(a)(ii)).

(a) the test in the opinion of the police officer in whose presence it is made indicates that the person's breath contains alcohol;

S. 31(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.4(a)(ii)).

(b) the person, in the opinion of the police officer, refuses or fails to carry out the test in the manner specified in section 29(2).

S. 31(1A) inserted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(b)).

(1A) A police officer may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may also require the person to accompany a police officer to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first—

(a) the person has furnished the sample of breath and been given the certificate referred to in subsection (4);

S. 31(2) amended by Nos 20/1993 s. 7(2), 17/1994 s. 17(2), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(c)).

(2) A police officer may require any person whom that police officer reasonably believes to have offended against section 28(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 29) and for that purpose may also require the person to accompany a police officer to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first—

(a) the person has furnished the sample of breath and been given the certificate referred to in subsection (4);

S. 31(2AA) inserted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(d)).

(2AA) A police officer may require any person who is required to undergo a drug assessment under section 31AA to furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the drug assessment until whichever of the following occurs first—

(a) the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) and the drug assessment has been carried out;

S. 31(2A) inserted by No. 17/1994 s. 17(3), amended by Nos 58/1995 s. 28(a)(b), 94/2003 ss 34(9), 35(4), 66/2012 s. 11(3).

(2A) The person who required a sample of breath under subsection (1), (2) or (2AA) may require the person who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever.

(3) A breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.

S. 31(4) substituted by No. 17/1994 s. 17(4), amended by Nos 100/1995 s. 33(1), 94/2003 ss 34(10), 35(5).

(4) As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate in the prescribed form produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.

S. 31(4A) inserted by No. 20/1993 s. 7(3), repealed by No. 17/1994 s. 17(5).

(5) A person who furnishes a sample of breath under this section must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.

S. 31(6) amended by Nos 20/1993 s. 7(4), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(4).

(6) A person is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the person was—

S. 31(7) amended by No. 23/1994 s. 118(Sch. 1 item 34.2(a)(b)), repealed by No. 17/1994 s. 17(5).

S. 31(8) amended by No. 23/1994 s. 118(Sch. 1 item 34.3), repealed by No. 17/1994 s. 17(5).

S. 31(9) amended by No. 17/1994 s. 17(6).

(9) A person must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

S. 31(9A) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 ss 27(3), 28, 94/2003 s. 36, 65/2010 s. 385(1), 66/2012 s. 11(5), 37/2014 s. 10(Sch. item 106.4(d)).

(9A) The person who required a sample of breath under subsection (1), (2), (2AA) or (2A) from a person may require that person to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of that person's blood for analysis if it appears to him or her that—

(a) that person is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or

S. 31(9A)(b) amended by No. 94/2003 ss 34(11), 35(6).

(b) the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever—

and for that purpose may further require that person to accompany a police officer to a place where the sample is to be taken and to remain there until whichever of the following occurs first—

S. 31(9A)(c) inserted by No. 66/2012 s. 11(5)(b).

(c) the sample has been taken;

S. 31(9A)(d) inserted by No. 66/2012 s. 11(5)(b).

S. 31(9B) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(4), repealed by No. 55/2017 s. 34.

S. 31(9C) inserted by No. 17/1994 s. 17(7).

(9C) A person who allows the taking of a sample of his or her blood in accordance with subsection (9A) must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis.

S. 31(9D) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(3).

(9D) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (9A).

Penalty applying to this subsection: 12 penalty units.

S. 31(9E) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(5)(a)(b).

(9E) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (9A).

S. 31(10) amended by Nos 17/1994 s. 17(8)(a)(b), 100/1995 s. 33(2), 14/2000 s. 27(3), 37/2014 s. 10(Sch. item 106.4(d)).

(10) A person who is required under this section to furnish a sample of breath for analysis may, immediately after being given the certificate referred to in subsection (4), request the person making the requirement to arrange for the taking in the presence of a police officer of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the police officer.

S. 31(11) repealed by No. 55/2017 s. 34.

S. 31(12) amended by No. 17/1994 s. 17(9).

(12) Nothing in subsection (10) relieves a person from any penalty under section 28(1)(d) for refusing to furnish a sample of breath.

S. 31(12A) inserted by No. 17/1994 s. 17(10).

(12A) Evidence derived from a sample of breath furnished in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (10) if reasonable efforts were made to comply with the request.

S. 31(12B) inserted by No. 17/1994 s. 17(10), amended by No. 94/2003 ss 34(11), 35(6).

(12B) If the question whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a person is relevant on a hearing for an offence against section 28(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this subsection, a document—

(a) purporting to be a print-out produced by that instrument in respect of that sample; and

S. 31(12B)(b) amended by No. 100/1995 s. 33(3).

(b) purporting to be signed by the person who operated the instrument—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

S. 31(12C) inserted by No. 100/1995 s. 33(4), amended by No. 65/2010 s. 385(2).

(12C) A document referred to in subsection (12B) does not cease to be admissible in evidence or, in the absence of evidence to the contrary, to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988.

(13) An approval or authority given under or for the purposes of this section by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.

S. 31A inserted by No. 20/1993 s. 8.

31A Blood samples to be taken in certain cases

S. 31A(1) def. of designated place repealed by No. 7/1995 s. 4(1).

S. 31A(1) def. of
doctor amended by No. 23/1994 s. 118(Sch. 1 item 34.4).

doctor means a registered medical practitioner and includes a police surgeon.

S. 31A(2) amended by Nos 7/1995 s. 4(2), 65/2010 s. 386(1), 66/2012 s. 12, 55/2017 s. 35(1).

(2) If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of a marine incident (whether within Victoria or not) involving a vessel, the person must allow an approved health professional or a doctor to take from that person at that place a sample of that person's blood for analysis if—

S. 31A(2)(a) inserted by No. 66/2012 s. 12.

(a) the person was operating the vessel at the time the incident occurred; or

S. 31A(2)(b) inserted by No. 66/2012 s. 12.

(b) the person was the master or pilot of the vessel at the time the incident occurred and any of the following apply—

(i) the vessel was underway or at anchor at the time the incident occurred;

(ii) the vessel ran aground as a result of the incident.

1. For a first offence, 12 penalty units.

For a subsequent offence, 25 penalty units or imprisonment for 3 months.

S. 31A(2A) inserted by No. 93/2000 s. 10, amended by Nos 90/2001 s. 7(1), 65/2010 s. 386(2)(a).

(2A) On convicting a person, or finding a person guilty, of an offence under subsection (2) involving a registered recreational vessel or a regulated hire and drive vessel the court must—

(a) for a first offence—

(2A)(a)(i) amended by No. 65/2010 s. 386(2)(b).

(i) in the case of an offender who is the holder of a marine licence, cancel the licence and disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 12 months);

(2A)(a)(ii) amended by No. 65/2010 s. 386(2)(b).

(ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 12 months).

(b) for a second or subsequent offence—

(2A)(b)(i) amended by No. 65/2010 s. 386(2)(b).

(i) in the case of an offender who is the holder of a marine licence, cancel the licence and disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months);

(2A)(b)(ii) amended by No. 65/2010 s. 386(2)(b).

(ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months).

S. 31A(3) amended by Nos 7/1995 s. 4(3), 65/2010 s. 386(3), 37/2014 s. 10(Sch. item 106.5), substituted by No. 55/2017 s. 35(2).

(3) Subsection (2) does not apply if, in the opinion of the doctor first responsible for the examination or treatment of the person, the taking of a blood sample from that person would be prejudicial to that person's proper care and treatment.

S. 31A(4) amended by Nos 7/1995 s. 4(4), 55/2017 s. 35(3).

(4) A person to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by an approved health professional or doctor at a place which he or she enters or to which he or she is brought for examination or treatment.

(5) If a sample of a person's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except for the purposes of section 32.

S. 31A(6) amended by No. 55/2017 s. 35(4).

(6) A person must not hinder or obstruct an approved health professional or doctor attempting to take a sample of the blood of any other person in accordance with this section.

1. 12 penalty units.

S. 31A(7) amended by No. 55/2017 s. 35(5).

(7) No action lies against an approved health professional or doctor in respect of anything properly and necessarily done by the approved health professional or doctor in the course of taking any sample of blood which the approved health professional or doctor believes on reasonable grounds was required or allowed to be taken from any person under this section.

S. 31AA inserted by No. 66/2012 s. 13.

31AA Drug assessment

S. 31AA(1) amended by No. 37/2014 s. 10(Sch. item 106.6(a)).

(a) any person he or she finds operating a vessel; or

(b) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or

(c) any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

(d) any person that is or has been a master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

(e) any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or

S. 31AA(1)(f) amended by No. 37/2014 s. 10(Sch. item 106.6(a)(i)).

(f) any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was operating the vessel or the master or pilot of the vessel when it was involved in the accident; or

(g) any person whom he or she has required under section 29 to undergo a preliminary breath test; or

(h) any person required under section 31 to furnish a sample of breath or from whom a sample of blood was required to be taken under section 31(9A)—

to undergo an assessment of drug impairment if, in the opinion of the police officer, that person's behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone and for that purpose may further require the person to accompany a police officer to a place where the assessment is to be carried out and to remain there until whichever of the following occurs first—

(i) the assessment has been carried out;

(j) the passing of 3 hours after the person was—

(2) A person is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the person was—

S. 31AA(3) amended by No. 37/2014 s. 10(Sch. item 106.6(b)).

(3) An assessment of drug impairment must be carried out by a police officer authorised to do so by the Chief Commissioner of Police.

(4) An assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under subsection (5).

S. 31AA(5) amended by No. 34/2023 s. 127(Sch. 1 item 6.4).

(5) Safe Transport Victoria may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.

(6) The carrying out of an assessment of drug impairment must be video-recorded unless the prosecution satisfies the court that a video‑recording has not been made because of exceptional circumstances.

(7) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), a copy of the video-recording, if any, must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

(8) Subject to subsection (9), the video-recording of the carrying out of an assessment of drug impairment on a person is only admissible in a proceeding against that person for an offence against this Act for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under subsection (5).

(9) Evidence obtained as a result of an assessment of drug impairment carried out on a person is inadmissible as part of the prosecution case in proceedings against that person for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 31AC.

S. 31AA(10) amended by No. 37/2014 s. 10(Sch. item 106.6(c)).

(10) In any proceeding under this Act—

S. 31AA(10)(a) amended by No. 37/2014 s. 10(Sch. item 106.6(c)(i)).

(a) the statement of any police officer that on a particular date he or she was authorised by the Chief Commissioner of Police under subsection (3) to carry out an assessment of drug impairment; or

S. 31AA(10)(b) amended by No. 37/2014 s. 10(Sch. item 106.6(c)(i)).

(b) a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised by the Chief Commissioner under subsection (3) to carry out an assessment of drug impairment—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer.

S. 31AB inserted by No. 66/2012 s. 13.

31AB Blood and urine samples

S. 31AB(1) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(i)).

(1) If a person undergoes an assessment of drug impairment when required under section 31AA to do so and the assessment, in the opinion of the police officer carrying it out, indicates that the person may be impaired by a drug or drugs, any police officer may require the person to do either or both of the following—

S. 31AB(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(ii)).

(a) allow a registered medical practitioner or an approved health professional nominated by that police officer to take from the person a sample of that person's blood for analysis;

S. 31AB(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(ii)).

(b) furnish to a registered medical practitioner or an approved health professional nominated by that police officer a sample of that person's urine for analysis—

and for that purpose may further require the person to accompany a police officer to a place where the sample is to be taken or furnished and to remain there until whichever of the following occurs first—

(c) the sample has been taken or furnished;

S. 31AB(2) amended by No. 37/2014 s. 10(Sch. item 106.7(b)).

(2) A police officer must not require a person to allow a sample of his or her blood to be taken for analysis under subsection (1)(a) if that person has already had a sample of blood taken from him or her under section 31 after—

(b) being master or pilot of a vessel underway or at anchor; or

(c) being an occupant of a vessel.

S. 31AB(3) amended by No. 37/2014 s. 10(Sch. item 106.7(b)), repealed by No. 55/2017 s. 36.

(4) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with this section.

Penalty: 12 penalty units.

(5) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.

S. 31AB(6) amended by No. 37/2014 s. 10(Sch. item 106.7(b)).

(6) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), a copy of a written report on that assessment prepared by the police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

S. 31AC inserted by No. 66/2012 s. 13.

31AC Destruction of identifying information

(1) In this section, relevant offence means—

(a) an offence under section 28(1)(ba) or (ea); or

(b) any other offence arising out of the same circumstances; or

(c) any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.

(2) If an assessment of drug impairment has been carried out on a person under section 31AA and—

(a) the person has not been charged with a relevant offence at the end of the period of 12 months after the assessment; or

(b) the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence, whether on appeal or otherwise, before the end of that period—

the Chief Commissioner of Police must, subject to subsection (4), destroy, or cause to be destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.

(3) A video-recording and any related material and information referred to in subsection (2) must be destroyed—

(a) in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or

(b) in a case to which subsection (2)(b) applies—

(i) within 1 month after the conclusion of the proceeding and the end of any appeal period; or

(ii) if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within 1 month after dismissal under that section.

S. 31AC(4) amended by No. 37/2014 s. 10(Sch. item 106.8).

(4) A police officer may, before the end of a period referred to in subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in subsection (3) is a reference to that period as so extended.

(5) If the Magistrates' Court makes an order under subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.

(6) If a video-recording or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that person in writing whether the destruction has occurred.

(7) A person who knowingly—

(a) fails to destroy; or

(b) uses, or causes or permits to be used—

a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

(8) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

S. 31AD inserted by No. 66/2012 s. 13.

31AD Preliminary oral fluid tests

S. 31AD(1) amended by No. 37/2014 s. 10(Sch. item 106.8).

(a) any person he or she finds operating a vessel; or

(b) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or

(c) any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

(d) any person that is or has been the master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

(e) any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or

S. 31AD(1)(f) amended by No. 37/2014 s. 10(Sch. item 106.8).

(f) any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was operating the vessel or the master or pilot of the vessel when it was involved in the accident—

to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if on board a vessel, to leave the vessel for the purpose of undergoing the test.

(2) A preliminary oral fluid test must be carried out in accordance with the prescribed procedure*.*

(3) A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.

S. 31AD(4) amended by No. 37/2014 s. 10(Sch. item 106.8).

(4) A person required to undergo a preliminary oral fluid test must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the police officer who, under this section, is requiring the test to be undergone, a sufficient sample of oral fluid has been captured by the device or unit.

S. 31AD(5) amended by No. 37/2014 s. 10(Sch. item 106.8).

(5) A police officer who, under this section, is requiring another person to undergo a preliminary oral fluid test may give any reasonable direction as to the physical actions that are necessary for the person to undergo the test*.*

(6) Without limiting section 30(3), a person required to undergo a preliminary oral fluid test is required to remain at the place at which the test is being carried out until the sample of oral fluid provided has been tested by a prescribed device.

(7) A person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person was—

S. 31AE inserted by No. 66/2012 s. 13.

31AE Oral fluid testing and analysis

S. 31AE(1) amended by No. 37/2014 s. 10(Sch. item 106.9(a)(i)).

(1) If a person undergoes a preliminary oral fluid test when required to do so under section 31AD by a police officer and—

S. 31AE(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.9(a)(ii)).

(a) the test, in the opinion of the police officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or

S. 31AE(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.9(a)(ii)).

(b) the person, in the opinion of the police officer, refuses or fails to carry out the test in the manner specified in section 31AD(4)—

any police officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 32A and for that purpose may further require the person to accompany any police officer to a place where the sample is to be provided and to remain there until whichever the first occurs—

(c) the person has provided the sample and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11);

Example

A person may be required to go to a police station, a public building or a police car to provide a sample of oral fluid under this section.

S. 31AE(2) amended by No. 37/2014 s. 10(Sch. item 106.9(b)).

(2) A police officer may require any person who is required to undergo an assessment of drug impairment under section 31AA or to furnish a sample of breath for analysis by a breath analysing instrument under section 31 to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 32B and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the assessment or furnishing the sample of breath until whichever the first occurs—

(a) the person has provided the sample of oral fluid and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and the assessment has been carried out or the sample of breath has been furnished (as the case requires);

(3) The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.

S. 31AE(4) amended by No. 37/2014 s. 10(Sch. item 106.9(c)).

(4) The police officer who required a person to provide a sample of oral fluid to be provided under subsection (1) or (2) may require the person who provided it to provide one or more further samples if it appears to the police officer that the prescribed device is incapable of testing for the presence in the sample, or each of the samples, previously provided of a prescribed illicit drug because the amount of sample provided was insufficient or because of a power failure or malfunctioning of the device or for any other reason whatsoever.

S. 31AE(5) amended by No. 37/2014 s. 10(Sch. item 106.9(d)).

(5) Only a police officer authorised in writing by the Chief Commissioner of Police, for the purposes of this section, may carry out the procedure for the provision of a sample of oral fluid under this section.

S. 31AE(6) amended by No. 37/2014 s. 10(Sch. item 106.9(e)).

(6) The Chief Commissioner of Police may only authorise a police officer for the purposes of this section if satisfied that the police officer has the appropriate training to carry out the prescribed procedure for the provision of a sample of oral fluid under this section.

(7) A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.

S. 31AE(8) amended by No. 37/2014 s. 10(Sch. item 106.9(f)).

(8) A person required to provide a sample of oral fluid under this section must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the police officer, a sufficient sample of oral fluid has been captured by the device or unit.

S. 31AE(9) amended by No. 37/2014 s. 10(Sch. item 106.9(f)).

(9) A police officer who, under this section, is requiring another person to provide a sample of oral fluid may give any reasonable direction as to the physical actions that are necessary for the person to provide the sample.

(10) A person is not obliged to provide a sample of oral fluid under this section if more than 3 hours have passed since the person was—

S. 31AE(11) amended by No. 37/2014 s. 10(Sch. item 106.9(g)).

(11) If a test by a prescribed device of a sample of oral fluid provided under this section indicates, in the opinion of the police officer who carried out the procedure in the course of which the sample was provided, that the person's oral fluid contains a prescribed illicit drug, the police officer must retain a part of the sample and deliver another part to the person by whom the sample was provided.

(12) A person must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

S. 31AE(13) amended by No. 37/2014 s. 10(Sch. item 106.9(h)).

(13) The police officer who required a person to provide a sample of oral fluid under subsection (1) or (2) may require that person to allow a registered medical practitioner or an approved health professional nominated by the police officer who required the sample to take from the person a sample of that person's blood for analysis if it appears to the police officer that—

(a) that person is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition; or

(b) the prescribed device is incapable of testing for the presence in the sample of a prescribed illicit drug for any reason whatsoever—

and for that purpose may further require that person to accompany a police officer to a place where the sample of blood is to be taken and to remain there until whichever of the following first occurs—

(c) the sample has been taken;

S. 31AE(14) amended by No. 37/2014 s. 10(Sch. item 106.9(i)), repealed by No. 55/2017 s. 37.

(15) A person who allows the taking of a sample of his or her blood in accordance with subsection (13) must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section.

(16) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (13).

Penalty: 12 penalty units.

(17) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (13).

S. 31AE(18) amended by No. 37/2014 s. 10(Sch. item 106.9(i)).

(18) A person who is required under this section to provide a sample of oral fluid may, immediately after being given a part of the sample under subsection (11), request the police officer making the requirement to arrange for the taking, in the presence of any police officer, of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the police officer in whose presence the sample is taken.

S. 31AE(19) repealed by No. 55/2017 s. 37.

(20) Nothing in subsection (18) relieves a person from any penalty under section 28(1)(eb) for refusing to provide a sample of oral fluid.

(21) Evidence derived from a sample of oral fluid provided in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (18) if reasonable efforts were made to comply with the request.

S. 31AE(22) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(ii)).

(22) In any proceeding under this Act—

S. 31AE(22)(a) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(i)).

(a) the statement of any police officer that on a particular date he or she was authorised under subsection (6) for the purposes of this section; or

S. 31AE(22)(b) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(i)).

(b) a certificate purporting to be signed by the Chief Commissioner of Police certifying that a particular police officer named in it is authorised under subsection (6) for the purposes of this section—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer.

32 Evidentiary provisions—blood tests

S. 32(1) substituted by No. 5/2016 s. 6(1).

approved analyst means an approved analyst within the meaning of section 57 of the Road Safety Act 1986;

approved laboratory means an approved laboratory within the meaning of section 57 of the Road Safety Act 1986;

(b) a person who conducts an analysis in an approved laboratory; or

(c) a person who is considered by the court to have scientific qualifications, training and experience that qualifies the person to carry out the analysis and to express the opinion to which this section relates.

S. 32(2) amended by Nos 20/1993 s. 9(1)(c), 93/2009 s. 47(2), 66/2012 s. 14(1).

(2) If the question—

S. 32(2)(a) amended by No. 20/1993 s. 9(1)(a).

(a) whether any person was or was not at any time under the influence of alcohol or any other drug; or

S. 32(2)(b) amended by No. 20/1993 s. 9(1)(b).

(b) as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time—

or if a finding on the analysis of a blood sample is relevant on a hearing for an offence against section 28(1) or on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel or, in the case of a master or pilot, arising out of the direction of the operation of a vessel, then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

S. 32(2)(c) amended by Nos 23/1994 s. 118(Sch. 1 item 34.5), 14/2000 s. 27(6), 23/2001 s. 22, 65/2010 s. 387, 66/2012 s. 14(2).

(c) of the taking, after that person was operating a vessel or the master or pilot of a vessel underway or at anchor, of a sample of blood from that person by a registered medical practitioner or an approved health professional; and

(d) of the analysis of that sample of blood by a properly qualified analyst within 12 months after it was taken; and

S. 32(2)(e) amended by No. 20/1993 s. 9(1)(d).

(e) of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis.

S. 32(3) amended by Nos 23/1994 s. 118(Sch. 1 item 34.5), 14/2000 s. 27(6).

(3) A certificate in the prescribed form purporting to be signed by a registered medical practitioner or an approved health professional as to the taking, in accordance with subsection (2), of a sample of blood from a person is admissible in evidence in any proceedings referred to in that subsection and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

S. 32(4) substituted by No. 5/2016 s. 6(2).

(4) A certificate in the prescribed form as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood—

(b) stating that the sample of blood was analysed in an approved laboratory—

is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

S. 32(5) amended by Nos 17/1994 s. 18(1), 94/2003 s. 37(1).

(5) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (2) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

S. 32(5A) inserted by No. 94/2003 s. 37(2).

(5A) A copy of a certificate given under this section may be served on the accused by—

(b) leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

S. 32(6) amended by Nos 17/1994 s. 18(1), 100/1995 s. 33(5)(a)(b), 94/2003 s. 37(3).

(6) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (2) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

S. 32(7) substituted by No. 20/1993 s. 9(2), amended by No. 17/1994 s. 18(2).

(7) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

S. 32(8) substituted by No. 20/1993 s. 9(2).

(8) The court must not grant leave under subsection (7) unless it is satisfied—

(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

(i) there is a reasonable possibility that the blood referred to in a certificate given by an analyst under subsection (4) was not that of the accused; or

S. 32(8)(b)(ii) amended by Nos 23/1994 s. 118(Sch. 1 item 34.5), 14/2000 s. 27(6).

(ii) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or

S. 32(8)(b)(iii) substituted by No. 7/1995 s. 4(5), repealed by No. 55/2017 s. 38.

(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.

S. 32(8A) inserted by No. 17/1994 s. 18(3).

(8A) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under subsection (7).

S. 32(9) amended by Nos 23/1994 s. 118(Sch. 1 item 34.5), 14/2000 s. 27(7)(a)(b).

(9) If a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the person to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the person was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.

S. 32(10) amended by Nos 17/1994 s. 18(4), 93/2000 s. 11.

(10) Except as provided in sections 31(9A) and 31A, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the person from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.

(11) The mere failure or refusal of a person to express consent must not be used in evidence against that person or referred to in any way against that person's interests in any proceedings.

S. 32A inserted by No. 66/2012 s. 15.

32A Evidentiary provisions—urine tests

S. 32A(1) def. of approved analyst substituted by No. 5/2016 s. 7(1)(a).

approved analyst means an approved analyst within the meaning of section 57A of the Road Safety Act 1986;

approved expert means a person who by virtue of section 32C(2) is taken to be a properly qualified expert for the purposes of this section;

S. 32A(1) def. of approved laboratory inserted by No. 5/2016 s. 7(1)(c).

approved laboratory means an approved laboratory within the meaning of section 57A of the Road Safety Act 1986;

prescribed legal proceeding means—

(a) a hearing for an offence against section 28(1); or

(b) a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel;

S. 32A(1) def. of properly qualified analyst amended by No. 5/2016 s. 7(1)(b).

(ab) a person who carries out an analysis in an approved laboratory; or

(b) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4);

properly qualified expert means—

(a) an approved expert; or

(b) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under subsection (5).

(2) If a question as to the presence of a drug in the body of a person at any time is relevant in a prescribed legal proceeding then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

(a) of the furnishing by that person, after that person operated a vessel or was a master or pilot or a vessel underway or at anchor, of a sample of urine to a registered medical practitioner or an approved health professional;

(b) of the analysis of that sample of urine by a properly qualified analyst within twelve months after it was taken;

(c) of the presence of a drug in that sample of urine at the time of analysis;

(d) by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used, including its effect on—

(i) in the case of a person operating a vessel, the person's ability to operate the vessel properly;

(ii) in the case of a master or pilot, the person's ability to direct the proper operation of the vessel.

(3) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

S. 32A(4) substituted by No. 5/2016 s. 7(2).

(4) A certificate, containing the prescribed particulars, as to the presence in any sample of urine of a substance that is, or is capable of being, a drug for the purposes of this Act—

(b) stating that the urine sample was analysed in an approved laboratory—

is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(5) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to operate a vessel properly or, in the case of a master or pilot, to direct the proper operation of a vessel) is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(6) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (2) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

(7) A copy of a certificate given under this section may be served on the accused by—

(b) leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

(8) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (2) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

(9) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

(10) The court must not grant leave under subsection (9) unless it is satisfied—

(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

(i) there is a reasonable possibility that the urine referred to in a certificate given by an analyst under subsection (4) was not that of the accused; or

(ii) there is a reasonable possibility that the urine referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the urine not been contaminated in that way; or

(iii) there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample operated a vessel or was a master or pilot of a vessel underway or at anchor; or

(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.

(11) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend the court on the hearing of an application for leave under subsection (9).

(12) Evidence of a kind permitted to be given by subsection (2) in a prescribed legal proceeding is inadmissible as evidence in any other legal proceedings.

S. 32B inserted by No. 66/2012 s. 15.

32B Evidentiary provisions—oral fluid tests

S. 32B(1) def. of approved analyst substituted by No. 5/2016 s. 8(1)(a).

approved analyst means an approved analyst within the meaning of section 57B of the Road Safety Act 1986;

S. 32B(1) def. of approved laboratory inserted by No. 5/2016 s. 8(1)(c).

approved laboratory means an approved laboratory within the meaning of section 57B of the Road Safety Act 1986;

prescribed legal proceeding means—

(a) a hearing for an offence against section 28(1); or

(b) a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel;

S. 32B(1) def. of properly qualified analyst amended by No. 5/2016 s. 8(1)(b).

(ab) a person who carries out an analysis in an approved laboratory; or

(b) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4).

(2) If a question as to the presence of a prescribed illicit drug in the body of a person at any time is relevant in a prescribed legal proceeding then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

(a) of the providing by that person of a sample of oral fluid under section 31AE after that person was—

(ii) a master or pilot of a vessel underway or at anchor; or

(iii) an occupant of a vessel;

(b) of the analysis of that sample of oral fluid by a properly qualified analyst within twelve months after it was taken;

(c) of the presence of a prescribed illicit drug in that sample of oral fluid at the time of analysis.

(3) A certificate containing the prescribed particulars purporting to be signed by the person who carried out the procedure in the course of which the sample of oral fluid was provided is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

S. 32B(4) substituted by No. 5/2016 s. 8(2).

(4) A certificate, containing the prescribed particulars, as to the presence in any sample of oral fluid of a substance that is a prescribed illicit drug—

(b) stating that the sample of oral fluid was analysed in an approved laboratory—

is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(5) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (2) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

(6) A copy of a certificate given under this section may be served on the accused by—

(b) leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

(7) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (2) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

(8) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was provided, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

(9) The court must not grant leave under subsection (8) unless it is satisfied—

(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

(i) there is a reasonable possibility that the oral fluid referred to in a certificate given by an analyst under subsection (4) was not that of the accused; or

(ii) there is a reasonable possibility that the oral fluid referred to in a certificate given under subsection (3) had become contaminated in such a way that a drug found on analysis would not have been found had the oral fluid not been contaminated in that way; or

(iii) there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample operated the vessel, was a master or pilot of the vessel underway or at anchor, or was an occupant of the vessel; or

(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.

(10) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was provided, to attend the court on the hearing of an application for leave under subsection (8).

(11) Evidence of a kind permitted to be given by subsection (2) in prescribed legal proceedings is inadmissible as evidence in any other legal proceedings.

S. 32C (Heading) amended by No. 5/2016 s. 9(1).

S. 32C inserted by No. 66/2012 s. 15.

32C Approved experts

S. 32C(1) repealed by No. 5/2016 s. 9(2).

(2) A person who is an approved expert within the meaning of section 57A of the Road Safety Act 1986 is taken to be a properly qualified expertfor the purposes of sections 32A.

33 Evidentiary provisions—breath tests

S. 33(1) amended by Nos 20/1993 s. 10(1), 93/2009 s. 47(2), 66/2012 s. 16.

(1) If the question—

(a) whether any person was or was not at any time under the influence of alcohol; or

S. 33(1)(b) amended by No. 94/2003 ss 34(12), 35(7).

(b) as to the presence or the concentration of alcohol in the breath of any person at any time—

or if a result of a breath analysis is relevant on a hearing for an offence against section 28(1) or on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel or, in the case of a master or pilot, arising out of the direction of the operation of a vessel, then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section—

S. 33(1)(c) amended by No. 94/2003 ss 34(12), 35(7).

(c) evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 31; and

S. 33(1)(d) amended by No. 94/2003 ss 34(12), 35(7).

(d) the concentration of alcohol so indicated is, subject to compliance with section 31(4), evidence of the concentration of alcohol present in the breath of that person at the time his or her breath is analysed by the instrument.

S. 33(2) amended by Nos 20/1993 s. 10(2)(a)–(c), 17/1994 s. 19(1)(a)–(d), 100/1995 s. 33(6), 94/2003 ss 34(12), 35(7).

(2) A document purporting to be a certificate in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in subsection (1), subject to subsection (2E), is conclusive proof of—

S. 33(2)(a) inserted by No. 17/1994 s. 19(1)(b).

(a) the facts and matters contained in it; and

S. 33(2)(b) inserted by No. 17/1994 s. 19(1)(b).

(b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and

S. 33(2)(c) inserted by No. 17/1994 s. 19(1)(b).

(c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 31; and

S. 33(2)(d) inserted by No. 17/1994 s. 19(1)(b).

(d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and

S. 33(2)(e) inserted by No. 17/1994 s. 19(1)(b).

(e) the fact that the instrument was in proper working order and properly operated; and

S. 33(2)(f) inserted by No. 17/1994 s. 19(1)(b), substituted by No. 100/1995 s. 33(7).

(f) the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed—

unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.

S. 33(2AA) inserted by No. 100/1995 s. 33(8), amended by No. 65/2010 s. 388.

(2AA) A certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988.

S. 33(2A) inserted by No. 17/1994 s. 19(2).

(2A) A notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.

S. 33(2B) inserted by No. 17/1994 s. 19(2).

(2B) The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).

S. 33(2C) inserted by No. 17/1994 s. 19(2).

(2C) If an accused person gives notice to the informant in accordance with subsection (2) that he or she requires the person giving a certificate to be called as a witness and the court is satisfied that that person—

(a) is dead; or

(b) is unfit by reason of his or her bodily or mental condition to testify as a witness; or

S. 33(2C)(c) amended by No. 37/2014 s. 10(Sch. item 106.10).

(c) has ceased to be a police officer or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or

(d) cannot with reasonable diligence be found—

the court must order that subsection (2) has effect as if the notice had not been given.

S. 33(2D) inserted by No. 17/1994 s. 19(2).

(2D) A certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.

S. 33(2E) inserted by No. 17/1994 s. 19(2), amended by No. 100/1995 s. 33(9).

(2E) Nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.

S. 33(3) substituted by No. 94/2003 s. 38.

(3) In any proceeding under this Act—

(a) the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 31 to operate breath analysing instruments; or

(b) a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner under section 31 to operate breath analysing instruments—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.

(4) Evidence by a person authorised to operate a breath analysing instrument under section 31—

(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Act; and

(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her; and

(c) that, in relation to the breath analysing instrument, all regulations made under this Act with respect to breath analysing instruments were complied with—

is, in the absence of evidence to the contrary, proof of those facts.

S. 33(5) substituted by No. 17/1994 s. 19(3), amended by Nos 55/2017 s. 39, 6/2018 s. 68(Sch. 2 item 85.2).

(5) The statement on oath or by affirmation of a person authorised to operate a breath analysing instrument under section 31 when called as a witness that any apparatus used by him or her on any occasion under section 31 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions—

(a) "Alcotest 7110" and "3530791"; or

(b) "Alcotest 9510 AUS" and "8320869"—

whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of this Act.

S. 33A inserted by No. 20/1993 s. 11.

33A Avoidance of certain provisions in contracts of insurance

S. 33A(1) amended by Nos 94/2003 s. 34(13), 65/2010 s. 389, 55/2017 s. 40.

(1) Any covenant, term, condition, or other provision of a contract or other agreement is void to the extent that it purports to exclude or limit the liability of an insurer under a contract of insurance in the event of the master of a vessel having a concentration of alcohol present in his or her breath or blood as indicated by an analysis of his or her breath or blood of not more than 0∙05 grams per 210 litres of exhaled air or 100 millilitres of blood (as the case requires).

(2) Subsection (1) applies to a contract of insurance whether entered into before or after the commencement of section 11 of the Marine (Amendment) Act 1993.

S. 33B inserted by No. 66/2012 s. 17.

33B Prohibited analysis

DNA database has the meaning given by section 464(2) of the Crimes Act 1958;

Part 4 sample means a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under this Part;

permitted purpose, in relation to an analysis of a Part 4 sample, means the purpose of determining—

(a) whether alcohol or any other drug is present in the sample; or

(b) the level of concentration in which alcohol or any other drug is present in the sample;

prohibited analysis, in relation to a Part 4 sample, means analysis of the sample for a purpose other than the permitted purpose.

Example

Deriving a DNA profile from the sample is a purpose for which analysis is prohibited.

(2) A person who intentionally or recklessly—

(a) supplies a Part 4 sample, or causes a Part 4 sample to be supplied, to a person for prohibited analysis; or

(b) carries out a prohibited analysis of a Part 4 sample; or

(c) includes, or causes the inclusion of, information derived from a prohibited analysis on a DNA database kept under a law of this State or the Commonwealth or of another State or a Territory—

is guilty of an offence and liable to imprisonment for a term of not more than 12 months or to a fine of not more than 120 penalty units.

Part 5—Pollution

34 Definitions etc.

(1) In this Part—

S. 34(1) def. of agent amended by No. 82/1995 s. 154(8)(a).

agent, in relation to a vessel, means any person who performs for or on behalf of the owner of the vessel any function or duty under or for the purposes of this Act and includes any person who, within the State, on behalf of the owner of the vessel, undertakes or performs the functions of ships' husbandry or makes any arrangements for or in connection with the repair or berthing of the vessel or the carriage, loading or unloading of cargo, stores or bunkers on the vessel or from the vessel;

S. 34(1) def. of appropriate authority amended by Nos 82/1995 s. 154(8)(b), 77/2001 s. 31(1)(h), 66/2012 s. 20.

appropriate authority means the Secretary;

discharge means any discharge or escape, howsoever caused;

occupier—

(a) in relation to a place on land, means the person exercising personally or through servants or agents, any right of occupation of the land or, if there is no such person, the owner of the land; and

(b) in relation to a vehicle, includes the person in charge of the vehicle and the owner of the vehicle but does not include the occupier of the land on or over which the vehicle stands or moves; and

(c) in relation to a pipeline, means the person who undertakes the carriage of oil or an oily mixture by means of the pipeline;

oil and oily mixture have the same meanings as in Division 1 of Part 2 of the Pollution of Waters by Oil and Noxious Substances Act 1986;

oil residues means those parts of an oily mixture that remain after undergoing a separation process;

place on land includes—

(a) any structure or apparatus on land; and

(b) anything or vehicle resting on or moving over land; and

(c) anything resting on or lying under the bed, shore or bank of any navigable waters; and

(d) anything afloat (other than a vessel) if it is anchored or attached to the bed, shore or bank of any navigable waters or is used in any operation for the exploration of the sea-bed and sub-soil or the exploitation of the natural resources of the sea-bed and sub-soil;

prohibited discharge means a discharge into State waters of—

(a) oil; or

(b) an oily mixture; or

(c) an undesirable substance;

public statutory body includes any Minister of the Crown and any municipality;

tanker means a vessel constructed or adapted for carrying a cargo of oil in bulk;

transfer operation means any operation involved in the preparation for, or the commencement, carrying on or termination of, the transfer of oil or an oily mixture or a liquid substance or a mixture containing a liquid substance from or to any vessel, whether to or from a place on land or to or from another vessel;

undesirable substance means—

(a) any solid ballast, rubbish, gravel, earth, stone or wreck; or

(b) any dangerous, flammable, corrosive or offensive substance, whether solid, liquid or gaseous; or

(c) any article or thing or any substance (whether solid, liquid or gaseous) which is capable of constituting a hazard to navigation or of preventing or hindering the proper use of State waters—

but does not include oil or an oily mixture.

(2) A discharge of oil or an oily mixture onto or into any land, water, structure or thing is, if the whole or any part of the oil or oily mixture eventually enters State waters, to be taken for all purposes under this Part to be a discharge into State waters of the oil or oily mixture or of so much of it as enters State waters.

35 Saving of other laws

No. 6705 s. 5.

(1) This Part must be construed as being in addition to and not in derogation of any other law of the State.

No. 6705 s. 29.

S. 35(2) amended by No. 39/2018 s. 42.

(2) To the extent that this Part is inconsistent with any of the provisions of the Environment Protection Act 2017, the provisions of the Environment Protection Act 2017 prevail.

S. 36 amended by No. 46/1991 s. 38(1)(2), repealed by No. 82/1995 s. 160.

S. 37 amended by No. 46/1991 s. 39(1)(2), repealed by No. 82/1995 s. 160.

No. 6705 s. 8.

38 Removal of pollution

S. 38(1) substituted by No. 77/2001 s. 19.

(1) If a prohibited discharge occurs, or is likely to occur, the appropriate authority or any public statutory body may—

(a) do anything necessary to prevent the discharge from occurring;

(b) do anything necessary to mitigate the effect the discharge has, or will have, on the marine environment, any marine habitat (including any habitat used for aquaculture) or any marine or other wildlife;

(c) remove, disperse, destroy or mitigate the discharge or any thing polluted by the discharge;

(d) reinstate or restore any land, building, structure or vessel that has been damaged by the discharge.

(2) The powers conferred by subsection (1) on a public statutory body that is a municipality are limited to the area within the boundaries of the municipal district of the municipality and the area immediately adjacent to that area but any other public statutory body and any appropriate authority may exercise those powers either within or outside the land or waters under its control.

(3) Any appropriate authority or public statutory body may recover all costs and expenses incurred by it in or in connection with any exercise of the powers conferred by subsection (1)—

S. 38(3)(a) amended by No. 78/2011 s. 45(1)(a).

(a) if the discharge occurs or is likely to occur from any place on land, from the occupier of that place; or

S. 38(3)(b) amended by No. 78/2011 s. 45(1)(a).

(b) if the discharge occurs or is likely to occur from any vessel, from the owner of that vessel; or

S. 38(3)(c) amended by No. 78/2011 s. 45(1).

(c) if the discharge occurs or is likely to occur from any apparatus, from the person in charge of the apparatus.

S. 38(4) amended by Nos 77/2001 s. 31(1)(b), 78/2011 s. 45(2).

(4) The Minister may reimburse a public statutory body for the costs and expenses incurred by it in or in connection with any exercise of the powers conferred by subsection (1) if the Minister is satisfied that the action taken by the public statutory body was reasonable or if the action was taken with the approval of, or at the request of, the Minister.

(5) If the Minister reimburses a public statutory body under subsection (4), the Minister may recover the costs and expenses in accordance with subsection (3) as if those costs and expenses had been incurred by the Minister in or in connection with an exercise of the powers conferred by subsection (1).

(6) Costs and expenses recoverable under this section may be recovered in the course of criminal proceedings in respect of the discharge or may be recovered in any court of competent jurisdiction as a debt due to the authority or body even if no proceedings have been taken in respect of the discharge.

S. 38(7) repealed by No. 55/2017 s. 41.

(8) Proceedings under this section are in addition to and not in derogation of any proceedings which may be taken apart from this section.

S. 38(9) inserted by No. 46/1991 s. 40.

(9) In this section prohibited discharge means prohibited discharge within the meaning of section 34 and includes—

(a) a discharge of a liquid substance or any mixture containing a liquid substance within the meaning of section 14 of the Pollution of Waters by Oil and Noxious Substances Act 1986; and

(b) a discharge or disposal of any other substance, the discharge or disposal of which is prohibited by that Act.

S. 38A inserted by No. 46/1991 s. 41.

38A Recovery of costs of analysis

(1) In this section, work conducted in relation to an appropriate authority or public statutory body, means any analysis, measurement, recording, evaluation, testing or inspection conducted by the authority or body through any of its officers, employees or agents.

(2) In any proceedings under this Act in which legal costs are awarded to an appropriate authority or public statutory body or a person appointed by the authority or body to take proceedings, the court may include in those costs the reasonable market cost of any work conducted by the authority or body.

(3) A document which—

(a) sets out charges for work similar to any work conducted by an appropriate authority or public statutory body; or

(b) purports to estimate the reasonable market cost of any work conducted by such an authority or body—

and which is signed by, or on behalf of, a person who purports to be a person who charges for doing any work similar to that conducted by the authority or body is evidence of the reasonable market cost of work conducted by the authority or body.

No. 6705 s. 8A.

39 Appropriate authority may issue written notice

(1) Without limiting or derogating from the provisions of section 38, if a prohibited discharge occurs or the appropriate authority is satisfied that a prohibited discharge is likely to occur from any place on land or from any apparatus used in a transfer operation, the appropriate authority may by notice in writing addressed to and served on the occupier of the place on land or the person in charge of the apparatus or the occupier or person in charge of any place on land used for, or apparatus used in, a transfer operation require—

(a) that any operation or activity in, on, or involving the use of the place on land or apparatus concerned be terminated; or

(b) that all or a specified part of the oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance contained in the place on land or apparatus concerned or any part of that place or apparatus be removed; or

(c) that the required removal of oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance from the place on land or apparatus concerned be carried out in a specified manner and to a specified place; or

(d) that all or a specified part of the oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance in the place on land or apparatus concerned be retained there; or

(e) that—

(i) no oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance; or

(ii) no further oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance; or

(iii) no oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance in excess of a specified amount—

be received into the place on land or apparatus concerned; or

(f) that any restrictions specified in the notice be complied with in the reception, or transfer of oil, oily mixture, liquid substance, mixture containing a liquid substance, or undesirable substance into, from or within the place on land or apparatus concerned; or

(g) that any equipment or machinery in or used with the place on land or apparatus concerned be operated or put into operating condition; or

(h) that specified repair or reconstruction work be carried out on the place on land or apparatus concerned or any part of that place or apparatus.

(2) If a notice under subsection (1) is addressed to and served on the occupier of any place on land and any requirement specified in the notice is not complied with as soon as possible or (as the case requires) within the time (if any) specified in the notice, the occupier of that place is guilty of an indictable offence and liable to a penalty of not more than 500 penalty units.

S. 39(3) amended by No. 57/1989 s. 3(Sch. item 126.1).

(3) If a requirement of a notice under subsection (1) is not complied with as soon as possible or within the time (if any) specified in the notice, the appropriate authority may cause the requirement to be complied with and for that purpose any officer of the authority or any other person authorised by the authority, acting in accordance with a warrant issued by a magistrate and using any force that is necessary and without doing unnecessary damage, may enter any place on land and may—

(a) take possession to any extent that is required of any vessel, place on land or apparatus used in a transfer operation; and

(b) take and retain possession of any substance or thing; and

(c) use and operate any machinery or equipment.

(4) The appropriate authority may recover all costs and expenses incurred by it in or in connection with any exercise of the powers conferred by subsection (3) from the occupier of the place on land or the person in charge of the apparatus, as the case requires.

(5) Costs and expenses recoverable under this section may be recovered in the course of proceedings for an offence under subsection (2) or may be recovered in any court of competent jurisdiction as a debt due to the appropriate authority even if no proceedings have been taken in respect of the offence.

(6) A notice under this section may be served on a person—

(a) by delivering the notice to the person personally; or

(b) by leaving the notice at the place on land or apparatus referred to in the notice with a person who is apparently not less than 18 years of age and who apparently has at that time the control or management of the land or apparatus.

Ss 40–44 repealed.[1]

No. 6705 ss 22, 23.

45 Power of Minister with respect to prohibited discharges

(1) If a prohibited discharge is occurring from a vessel, or the Minister is satisfied that a prohibited discharge is likely to occur from a vessel, the Minister may, for the purpose of preventing or reducing the extent of pollution or likely pollution of State waters, by notice in writing addressed to the owner of the vessel and served in accordance with this section do all or any of the following—

(a) require any action to be taken in relation to the vessel or its cargo (including ballast, stores and fuel), or the vessel and its cargo, that is specified in the notice, by the time specified in the notice and such action may include—

(i) action to prevent a prohibited discharge occurring from the vessel; and

(ii) the removal of oil, an oily mixture, a liquid substance or a mixture containing a liquid substance, or an undesirable substance from the vessel, or a specified part of the vessel, in any manner that may be specified; and

(iii) the removal of the vessel to a specified place;

(b) prohibit the removal of the vessel from a place specified in the notice except with, and in accordance with, the approval of the Minister; or

(c) prohibit the removal from the vessel of any cargo (including ballast, stores and fuel) specified in the notice except with, and in accordance with, the approval of the Minister.

(2) More than one notice may be served in respect of a vessel under subsection (1) and a subsequent notice may revoke or vary an earlier notice and, if an earlier notice is varied, it has effect as varied from the time when the other notice is served.

(3) Service of a notice under subsection (1) in respect of a vessel must be effected—

(a) by serving it personally on the owner of the vessel or, if the owner is a company, on a director, secretary or other officer of the company; or

(b) by serving it personally on the agent of the vessel or, if the agent is a company, on a director, secretary or other officer of the company; or

(c) by serving it personally on the operator of the vessel or, if for any reason (including the absence of the operator from the vessel) it is not practicable to serve the notice on the operator, by handing it to any person on board the vessel who appears to be an officer of the vessel.

(4) If service cannot be effected on any person under subsection (3), the notice must be taken to be properly served if its contents are transmitted to the operator or person in command of the vessel by any manner in which receipt of the contents is acknowledged by any person on board the vessel to have been received and understood.

(5) A statement in writing purporting to be made and signed by a person employed as a communications officer whose duties include the transmission of messages to vessels at sea that he or she caused the contents of a notice under subsection (1) to be transmitted to a vessel at sea and received an acknowledgment of the message from some person purporting to be on board the vessel is evidence, until the contrary is proved, of service of the contents of the notice on the operator of the vessel.

S. 45(6) inserted by No. 46/1991 s. 45.

(6) In this section, prohibited discharge has the same meaning as in section 38.

No. 6705 ss 24–26.