Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023

Applied provisions and Scheduled Law. The Act defines the applied provisions as the Domestic Commercial Vessel National Law that applies as a law of the State because of s 6 (s 4(1) definition of applied provisions). The Scheduled Law is the Marine Safety (Domestic Commercial Vessel) National Law set out in the Commonwealth Act Schedule (s 4(1) Scheduled Law). Section 6(1) confirms the Domestic Commercial Vessel National Law for WA comprises (a) the Scheduled Law as in force on 15 May 2023 and as amended by amending Acts that take effect for WA under the Act, (b) legislative instruments under the Scheduled Law, subject to s 12, and (c) savings or transitional provisions consequential on enactment or amendment as provided in s 6(1)(c) and s 16.

Amending Acts and the WA disallowance mechanism. An amending Act is defined to include Commonwealth Acts that amend the Marine Safety (Domestic Commercial Vessel) National Law and which receive Royal Assent on or after 15 May 2023 (s 4(1) definition). The Act imposes procedural steps for such amending Acts to take effect for the purposes of WA: they must be tabled in both Houses within 18 sitting days (s 7), and will have effect for the purposes of Part 2 only if no notice of disallowance is given in the notice period of 14 sitting days or a disallowance resolution fails within the disallowance period (s 8). Where an amending Act has effect for WA under s 8(2), the Governor proclaims that fact (s 9(1)), and the timing for when provisions of those Acts apply in WA depends on whether they have come into operation in the Commonwealth prior to proclamation (s 9(2)-(3)). These processes create a parliamentary oversight mechanism that allows WA to accept or reject Commonwealth amendments for application within the State.

Treatment of Commonwealth criminal and administrative laws. The Act intentionally makes offences against the applied provisions treatable as offences against Commonwealth law for purposes such as investigation, prosecution, bail, trial and sentencing (ss 20 and 21). Section 21(2) provides that relevant Commonwealth criminal laws apply as laws of the State in relation to an offence against the applied provisions as if the applied provisions were Commonwealth law. Section 24 applies Commonwealth administrative laws as laws of the State to matters arising under the applied provisions, subject to the qualification in s 24(4) that a provision purporting to confer federal court jurisdiction is taken not to have that effect.

Delegation and roles. The National Regulator and other authorities and officers referred to in the applied provisions have the same functions and powers under the applied provisions as they have under Commonwealth law (s 18). Delegations by the National Regulator under the Commonwealth law are taken to extend to the corresponding State-applied provisions (s 19). At State level, the chief executive officer may designate inspectors and authorised persons (s 117), issue identity cards (s 118), delegate functions (s 124A) and enter agreements permitting others, including local government and Commissioner of Police, to perform specified functions under s 124B.

Inspector powers and enforcement mechanics in the amended Marine Act. The Marine Act amendments rework powers of inspectors substantially. Inspectors may board vessels without consent or warrant for the purpose of determining compliance and exercising powers (s 7), require masters to answer questions and produce documents (s 8), search, examine and take measurements or recordings of vessels (s 9), operate and extract data from electronic equipment or information storage devices (s 9(3)-(4)), and seize or secure evidential material in urgent circumstances (s 11). Inspectors may enter premises with consent or under warrant, seize evidential material, secure electronic equipment pending expert assistance (s 35) and use reasonable force in executing warrants (s 16). Powers to give directions, improvement notices and effects of non-compliance are set out at ss 19-23. Many of these powers carry specified penalties for non-compliance.

Information protection and disclosure. Division 1 of Part VIII (ss 107-113) creates a structured data regime. Defined categories include marine qualification information, mooring information, incident information, offence information, infringement notice information and vessel information (s 107). Section 108 criminalises improper recording, use or disclosure of information obtained when performing functions under the Act (penalty: imprisonment up to 12 months or fine up to $12,000), while permitting authorised uses and de-identified publishing (s 108(2)-(4)). The chief executive officer is required to disclose core datasets to the Commissioner of Police (s 109), may disclose to other relevant authorities for performance of their functions (s 110), and may disclose to prescribed persons for authorised purposes with criminal penalties for misuse (s 111).

Detention, forfeiture and review. The Act establishes a detention power for pleasure and prescribed vessels considered unsafe (s 61), sets a procedure for notification, inspection and either release or specification of conditions (s 61(2)-(4), s 63), allows for return and forfeiture processes (ss 63A-63B), and provides a right of review to the State Administrative Tribunal for persons aggrieved by detention or forfeiture decisions (s 63C).

Revenue and payments. The Act directs that, subject to s 26, all fees, penalties, fines and other money authorised under the applied provisions must be paid to the National Regulator (s 28). Section 26 allows State regulations to provide for fees payable to the State when officers or employees of the State act as delegates, or accredited persons conduct assessments.

Interpretive and transitional rules. The Acts Interpretation Act 1901 (Cth) applies for interpretation of the applied provisions and the WA Interpretation Act 1984 does not apply (s 17). Transitional regulations may be made under s 33, but cannot be made later than two years after commencement day (s 35(3)); similarly for transitional regulations dealing with Part 9 and Part 10 amendments (s 137(3)).

Owners and masters of vessels. The primary regulatory targets are owners and masters of domestic commercial vessels (defined by reference to the Scheduled Domestic Commercial Vessel National Law, s 3(1) inserted definitions), but the Act also imposes duties on owners and masters of pleasure vessels and prescribed vessels as amended in the WA Marine Act (e.g. duties not to operate unsafe pleasure or prescribed vessels, s 58B; duties following marine incidents, ss 64A-64C). Owners can be exposed to detention costs and potential forfeiture if vessels are detained and not reclaimed or if conditions are not complied with (ss 61, 63B).

Masters and crew. Masters have several express duties. They must cooperate with boarding and inspection (s 7(2) imposes a penalty for failure to take reasonable steps to facilitate boarding), answer questions and produce records (s 8), render assistance and report marine incidents and preserve evidence (ss 64A-64C). Crew qualifications matter for reporting and certification, and marine qualification information is a regulated dataset (s 107).

Domestic commercial vessel operators and hirers. The Act imports the national law governing domestic commercial vessels; operators and hirers of such vessels are directly regulated by the applied provisions (s 6). Regulations may specify qualifications required by hirers of hire and drive vessels that are domestic commercial vessels (s 114(1A)(j)) and provide for recognition of certificates of survey from other jurisdictions (s 99(1)(m)(iii)).

Inspectors, authorised persons and the chief executive officer. Inspectors and authorised persons, designated by the chief executive officer, are empowered to exercise wide powers of entry, search, seizure, directions and improvement notices (ss 117-118, Part 2 replacement). The chief executive officer is the central administrative actor at the State level: issuing identity cards (s 118), designating inspectors (s 117), receiving and sharing information (ss 109-113), deciding on detention and release of vessels (ss 61-63), delegating and entering service agreements (ss 124-124B), and making certain notices and exemptions publicly available (s 124E).

National Regulator and Commonwealth officers. The National Regulator retains the functions and powers under the applied provisions equivalent to those it has under Commonwealth law (s 18). Commonwealth officers and authorities can exercise functions and powers relating to offences against the applied provisions under the declared application of Commonwealth criminal law (s 22). Delegations by the National Regulator under Commonwealth law are taken to extend to WA applied provisions (s 19).

Police and law enforcement agencies. The Commissioner of Police is a recipient of specified datasets and may use disclosed information for law enforcement (s 109). Section 109(2)(b) permits disclosure by the Commissioner to other law enforcement bodies in Australia or overseas for law enforcement functions. The Act also designates that police officers may be designated as inspectors (s 117(2)).

Accredited persons and private assessors. The Act recognises accredited persons, including those approved by the National Regulator to conduct final assessments for certificates of competency (s 26(1)). Regulations can provide for fees payable to the State when accredited persons who are State officers conduct assessments (s 26).

Owners of private moorings and users of State waters. The Act broadens regulation-making powers over State waters (s 114(1A)), including designation of waters, traffic management plans, removal and disposal of hazards, and creation of charges and recovery of costs associated with removal (s 114(1A)(g)-(i)). Those with mooring authorisations and registered owners in WA registers are subject to disclosure and data-sharing rules (ss 107, 110).

Courts, tribunals and administrative reviewers. Commonwealth administrative laws apply to matters under the applied provisions (s 24), and the Administrative Appeals Tribunal Act 1975 (excluding Part IVA) is included among the Commonwealth administrative laws (s 4(1)). For State administrative review the Act provides a right of review to the State Administrative Tribunal against decisions to detain vessels or to declare forfeiture under the Marine Act amendments (s 63C). The Act also clarifies that application of Commonwealth administrative laws does not confer federal court jurisdiction through those instruments when applied in WA (s 24(4)).

Service providers and third parties. Persons or bodies who may be contracted to perform functions under agreement with the chief executive officer (s 124B) include the Commissioner of Police, local governments and other public or private entities. The Act permits disclosure of datasets to prescribed persons for authorised purposes (s 111) and enables automated systems for disclosure (s 113).

Regulated businesses and insurers. Businesses engaged in commercial marine operations, hire businesses, repairers, salvors and insurers are affected by new rules on detention, removal, seizure, storage, disposal and potential creation of charges and recovery of costs (s 114(1A)(i)). The Criminal and Found Property Disposal Act 2006 is expressly made applicable for disposal of forfeited things and vessels (s 43 note and ss 63B(5), 42(4)).

Key statutory duties. Owners and masters of vessels must observe duties imposed across both the applied national law and the amended WA Marine Act. Specific duties include: not to operate an unsafe pleasure or prescribed vessel (s 58B(1)-(2)); to render assistance and exchange contact and vessel identification details after a marine incident and report incidents to the chief executive officer (ss 64A-64B); to preserve evidence relevant to an incident (s 64C); to comply with inspector directions and improvement notices (ss 19, 22); to produce licences, permits, certificates or other documents when required (s 18 of Part 2 replacement); and to facilitate boarding by inspectors when required (s 7(2)).

Obligations to provide information and identity obligations. Inspectors may require persons to provide name, residential address, date of birth and evidence of identity (s 9(2)(i)); failure to comply carries penalties (s 10). Inspectors may request details of persons they reasonably suspect have committed offences (s 120A replacement, renumbered 120A as 120A in the Act). Inspectors and authorised persons other than police must produce identity cards when exercising powers (s 118A(1)).

Procedural protections and rights. Occupiers and masters have specified procedural rights when premises are entered under warrant: announcement and opportunity to allow entry, production of identity cards (if inspector is not a police officer), availability of a copy of the warrant and information about rights and responsibilities (s 28(1)-(2)). Occupiers are entitled to observe the execution of a warrant subject to not impeding execution (s 30). If premises entered are unoccupied, notice must be left including the inspector’s official details and a copy of the warrant with judicial officer’s name omitted (s 28(5)-(6)). Where things are seized, occupiers may request copies of seized items that can be readily copied, unless possession would constitute an offence (s 38). Seized items must be returned when the reason for seizure no longer exists or at the end of 60 days unless certain exceptions apply (s 40). Judicial orders can authorise retention up to a maximum aggregate of three years in specified circumstances (s 41).

Review and appeal rights. For vessel detention and forfeiture under ss 61 and 63B, a person aggrieved may apply to the State Administrative Tribunal for review of the decision (s 63C). The Act also imports Commonwealth administrative law regimes for matters arising under the applied provisions, subject to the limits in s 24; that means administrative review and freedom of information regimes at Commonwealth level will generally be available in relation to applied provisions (s 24(1)-(3)). The Acts Interpretation Act 1901 (Cth) is to apply to interpretation of the applied provisions (s 17(1)), which will affect how statutory language is read.

Information handling duties and prohibitions. Persons obtaining information when performing functions under the Act must not record, use or disclose it except in specified circumstances (s 108). The permitted purposes include performing functions under the Act or a marine Act, legal requirement, court order, investigation of offences or disciplinary matters, and, for personal information, with the consent of the person concerned (s 108(2)). There is a criminal penalty for improper recording, use or disclosure (s 108(1)). The chief executive officer must disclose certain datasets to the Commissioner of Police (s 109), and may disclose to other relevant authorities and prescribed persons for authorised purposes (ss 110-111), with criminal penalties for misuse by prescribed recipients (s 111(3)).

Delegation, contracting and sharing of functions. The Minister and the chief executive officer may delegate powers (ss 124, 124A). The chief executive officer may enter agreements for performance of its functions by others, including the Commissioner of Police and local governments (s 124B). In the agreement context, the chief executive officer may disclose particular datasets to the person performing the function (s 124B(5)). Delegations and agreements must be in writing (ss 124(2), 124A(2)) and are taken to be exercised subject to their terms (ss 124(4), 124A(3)).

Revenue and financial duties. Fees payable to State officers acting as delegates may be prescribed by State regulation (s 26). Generally fines, fees and other money authorised under the applied provisions are payable to the National Regulator (s 28(1)), except for amounts specified in s 26. Infringement notice fine payments made to the State by the National Regulator are to be credited to the Consolidated Account (s 27).

Transitional duties. Transitional regulations may deem states of affairs to have existed from commencement day or another date not earlier than commencement day, subject to protections that they not prejudicially affect rights existing before publication day or impose liabilities for past acts (s 35(4)-(5); s 137(4)-(5)). Transitional regulations cannot be made more than two years after commencement day (s 35(3), s 137(3)).

No double jeopardy and treatment of offences. The Act contains an anti-double-jeopardy provision: if an act is both an offence against the applied provisions and an offence under the Commonwealth domestic commercial vessel national law, and the offender has been punished under the Commonwealth law, they cannot be punished again under the applied provisions (s 23).

Overview of enforcement architecture. Enforcement under the applied provisions and amended Marine Act takes multiple forms: inspector exercise of powers (warrantless boarding of vessels s 7; powers of search, seizure and data extraction s 9; entry to premises with consent or warrant s 12); directions and improvement notices, with power to accomplish required actions and recover costs (ss 19-21); infringement notices and fines (s 27); court prosecutions where penalties apply; and detention, forfeiture and disposal of vessels and seized things (ss 61-63B; ss 38-42).

Monetary penalties and criminal sanctions. The Act specifies a range of monetary penalties in the added Marine Act provisions. Selected penalties include:

• Boarding facilitation: master must take reasonable steps to facilitate boarding, penalty $2,000 (s 7(2)).
• Failure to answer questions or produce documents when required under s 8: penalty $2,000 (s 8(2)).
• Failure to comply with certain requirements under s 9 (production of documents, demonstrations, identification, direction to stop or manoeuvre): penalty $5,000 (s 10(1)), and providing false particulars attracts $5,000 (s 10(2)).
• Failure to comply with certain inspector requirements on premises: penalty $5,000 (s 15(2)).
• Tampering with or removing improvement notices: penalties up to $2,000 (s 23(4)).
• Operating an unsafe pleasure or prescribed vessel: penalty $5,000 (s 58B(1)-(2)); proceedings require chief executive officer consent (s 58B(6)).
• Detained vessel unauthorised operation: penalty $5,000 (s 62(1)).
• Marine incident reporting and preservation duties: various penalties (ss 64A(2), 64B(2), (4), 64C(2)-(3)), typically $2,000 or $5,000 depending on provision.
• General offences relating to information misuse: s 108 sets imprisonment up to 12 months or a fine of $12,000 for improper recording, use or disclosure.
• Offences by inspectors in earlier section replacements were increased, e.g. s 119 amendments apply $5,000 to certain misconduct provisions; s 120 penalties for obstruction of inspectors are $5,000 for individuals and $10,000 for corporations.

Many offences that previously attracted different penalties have been standardised to specified fines; see the series of amendments at ss 47-52 and elsewhere that replace or harmonise penalty figures.

Use of Commonwealth criminal laws and enforcement by Commonwealth officers. The Act treats offences against the applied provisions as if they were offences against Commonwealth law for purposes set out in s 20(2), and provides that relevant Commonwealth criminal laws apply as laws of the State in relation to these offences (s 21). Section 22 permits Commonwealth officers and authorities to exercise functions and powers in relation to offences against the applied provisions that they exercise in relation to the Commonwealth national law equivalent. The requirement that Commonwealth officers act as nearly as practicable as they would in the Commonwealth context is set out in s 22(2).

Search, seizure, securing and retention. Inspectors have powers to seize or secure things in urgent circumstances where evidential material is found during an inspection (s 11). For premises and vessels entered under warrant or consent, inspectors may take samples, seize evidential material, secure electronic equipment pending expert assistance (s 35), and operate electronic equipment to transfer information to storage devices (s 9(3)-(4), s 13(3)-(4)). Seized items must be receipted (s 39) and the occupier may request copies where the item is readily copied (s 38). Seized things should be returned when the reason for seizure no longer exists or at the end of 60 days unless court order or other enumerated exceptions apply (s 40). An inspector may obtain a judicial order to retain seized things where proceedings have not commenced, up to a total retention period not exceeding three years (s 41).

Detention and forfeiture of vessels. The chief executive officer may detain unsafe pleasure or prescribed vessels and bring them to port or other places as appropriate (s 61(1)). Notification and inspection timelines are set out in s 61(2)-(4) and s 63; if release is not authorised and conditions are not met, the chief executive officer may declare forfeiture and dispose of the vessel under the Criminal and Found Property Disposal Act 2006 (ss 63B(3)-(5)). The owner may be liable for the reasonable costs of detention and inspection recoverable by the chief executive officer; however if there was no reasonable cause for detention the State is liable to pay the owner’s costs and compensation (s 122).

Improvement notices and directions and enforcement costs. Inspectors may issue directions to protect safety or prevent contraventions (s 19). Non-compliance is an offence; the inspector may also take the remedial action and the chief executive officer may recover reasonable costs and expenses from the person required to comply (s 21). Improvement notices must specify the provision believed to be contravened, reasons, actions required and period to comply; noncompliance attracts penalty $5,000 (s 22).

Infringement notices and revenues. Infringement notice fines are handled under the Commonwealth Act and amounts paid to the State by the National Regulator under the Commonwealth Act must be credited to the Consolidated Account (s 27). The general rule is that fees, penalties, fines and other money under the applied provisions are payable to the National Regulator (s 28(1)), except fees under s 26 paid to the State where State officers act as delegates.

Information disclosure enforcement. Section 108 creates an offence for unauthorised recording, use or disclosure of information obtained in the performance of functions under the Act with a penalty of imprisonment up to 12 months or a fine up to $12,000. Disclosure obligations and permitted uses by the chief executive officer and Commissioner of Police are specified in ss 109-113, with duties to ensure information shared is used only for permitted functions.

Procedural requirements that affect enforcement. The Act places procedural safeguards and steps that affect enforceability and contestability, including tabling and disallowance of Commonwealth amending Acts and legislative instruments (ss 7-9, 14-15), the application of Commonwealth administrative laws to the applied provisions with specific limitations (s 24), and the availability of judicial and tribunal review for certain decisions such as detention and forfeiture (s 63C). Occupiers and persons inspected retain rights such as being given a copy of the warrant and the right to observe its execution subject to not impeding inspection (s 28(2), s 30).

Relationship of applied provisions to State law. The Act expressly applies the Domestic Commercial Vessel National Law as a law of the State (s 6(2)). Section 6(3) goes further, stating that it applies as if it extended to matters in relation to which the State may make laws, whether or not the Commonwealth may make laws in relation to those matters; this means the applied provisions can reach into areas of State competence. Section 6(4) clarifies that s 6(3) does not exclude a State marine safety law that would not otherwise be excluded by the Commonwealth national law. Importantly, in the amended Marine Act s 3B(2) the Domestic Commercial Vessel National Law is declared to prevail over the WA Marine Act where inconsistent.

Interpretation and statute-packaging. Section 17(1) imports the Commonwealth Acts Interpretation Act 1901 for interpretation of the applied provisions as if they were a Commonwealth Act or legislative instruments under a Commonwealth Act; s 17(2) withdraws the WA Interpretation Act 1984 from applying to the applied provisions. That choice aligns interpretation norms with Commonwealth practice for the applied provisions.

Commonwealth criminal and administrative laws. Sections 20 to 25 bring Commonwealth criminal and administrative laws to bear. Section 21(2) declares that relevant Commonwealth criminal laws apply as laws of the State in relation to offences against the applied provisions as if those applied provisions were Commonwealth law. Section 24 applies Commonwealth administrative laws to matters arising under the applied provisions as if they were Commonwealth laws but makes explicit that provisions purporting to confer jurisdiction on federal courts are taken not to have that effect (s 24(4)). The Administrative Appeals Tribunal Act 1975 (Cth) is included among the Commonwealth administrative laws imported, but Part IVA is excluded (s 4(1)).

Parliamentary oversight and State disallowance. The Act creates a mechanism by which Commonwealth amending Acts and legislative instruments are subject to WA parliamentary oversight. Amending Acts must be laid before each House within 18 sitting days (s 7), and the State can disallow such amending Acts for the purposes of WA using the notice and disallowance periods set out in s 8. Legislative instruments made under the Scheduled Law on or after 15 May 2023 must be published and tabled in WA (ss 14-15), and can cease to have effect for WA if not published or tabled or if disallowed (s 15(3)). These provisions create an overlay in which Commonwealth instruments can be operationally limited in WA unless they survive the State tabling and disallowance process.

Interaction with WA legislation and amendments to other Acts. Part 9 contains extensive amendments to the Western Australian Marine Act 1982 to harmonise terminology, expand powers and create new regimes (see many amendments at ss 36-100). The Act also amends or repeals multiple other State Acts to align cross-references and operation, including the Constitution Acts Amendment Act 1899, Marine and Harbours Act 1981, Personal Property Securities (Commonwealth Laws) Act 2011, Pollution of Waters by Oil and Noxious Substances Act 1987, Sentencing Act 1995, Supreme Court Act 1935 and Waterways Conservation Act 1976 (Part 10 Divisions 1-10). For example, s 106 amends section 17 of the Personal Property Securities (Commonwealth Laws) Act 2011 to extend a reference to the marine detention and forfeiture provisions (ss 61 to 63C). Regulations under s 114 can declare that a charge created under s 114(1A)(i)(iv) is to be declared under the Personal Property Securities Act 2009 (Commonwealth) s 73(2)(a).

Limitations and exceptions. The Act allows WA regulations to provide that particular Commonwealth amendments are not to take effect in WA (s 6(5)). Sections 15 and 16 place temporal and procedural conditions on the application of legislative instruments and savings or transitional provisions following Commonwealth amendments. Section 24(4) restricts the effect of applying Commonwealth administrative laws by taking them not to confer federal court jurisdiction. Section 21(4) and s 24(3) permit the regulations to provide exceptions where those subsections would otherwise apply.

Information sharing and privacy law interface. The Act creates mandatory and permissive disclosure duties between the chief executive officer and law enforcement and other authorities (ss 109-113). At the same time s 108 criminalises improper recording, use or disclosure and permits disclosure of de-identified information and publication by the chief executive officer. The Privacy Act 1988 (Cth) is included among the Commonwealth administrative laws applying to the applied provisions (s 4(1)), so privacy obligations will be engaged where personal information is handled, but the Act also sets out bespoke disclosure pathways for regulatory and law enforcement purposes.

Interplay with Commonwealth national law institutions. The National Regulator keeps primary operational control under the applied provisions (s 18), and Commonwealth delegations and legislative instruments remain relevant. Fees and fines flow primarily to the National Regulator (s 28), and the National Regulator may continue to set national regulatory standards; however the State retains an onshore administrative apparatus of inspectors, chief executive officer powers, and the ability to require publication and tabling of Commonwealth instruments for State effect (ss 7, 14-15).

Transitional and savings interaction. Transitional regulations for the Act and for the amendments to the WA Marine Act have strict windows and non-prejudicial limits (ss 35, 137). Some existing State orders, notices, exemptions and certificates continue in effect under specified transitional provisions (s 136), but are subject to the new statutory tests and must be taken to have effect under the relevant new provisions.

Foundational enactment and commencement pattern. The Act received Royal Assent and its Part 1 (preliminaries) commenced on 24 October 2023 (compilation table). Different provisions commenced on different dates by proclamation and statutory instruments: large parts of the Act (Parts 2-8 and Part 10 excluding certain Divisions) commenced 16 December 2023 by proclamation and SL 2023/190 cl. 2; additional provisions of Part 9 and Part 10 Divisions 1-5 and 7-10 commenced 21 December 2023 (SL 2023/203 cl. 2); selected remaining sections commenced 2 May 2024 (SL 2024/55 cl. 2); and s 54 is scheduled to commence on 19 December 2025 (compilation table). Section 44 remains unproclaimed (see the uncommenced provisions table). The Act defines "amending Act" to include Commonwealth Acts that received Royal Assent on or after 15 May 2023 (s 4(1)).

Tabling and disallowance innovations for Commonwealth amending Acts. The Act inserts a State-level parliamentary oversight mechanism for Commonwealth amending Acts and legislative instruments that affect the applied provisions. Amending Acts must be tabled within 18 sitting days (s 7). The Act sets a notice period for disallowance of 14 sitting days and a 30 sitting day disallowance period after notice for resolution to pass or lapse (s 8). The Governor must proclaim which amending Acts have effect in WA once the disallowance test is satisfied (s 9). Legislative instruments under the Scheduled Law made on or after 15 May 2023 must be published in the Gazette or on the WA legislation website within 18 days of being made and be tabled within six sitting days (ss 14-15). Failure to publish or table permits cessation of effect for WA under s 15(3).

Amendments to the Western Australian Marine Act 1982. Part 9 of the Act replaces numerous parts and provisions of the Marine Act. Key insertions and replacements include:

• New definitions and scope clarifications in s 3 and new ss 3A-3B clarifying the vessels and crew to which the Act applies and the relationship to the Domestic Commercial Vessel National Law (ss 39-40).
• Comprehensive replacement of the powers of inspectors (Part 2 replacement, ss 6-43) including warrantless boarding powers (s 7), search and seizure powers (ss 9-11), and powers relating to premises (ss 12-17).
• Detention, inspection, return and forfeiture regimes for unsafe pleasure or prescribed vessels (ss 58B, 61-63B) with procedural timelines and SAT review for affected persons (s 63C).
• Insertion of an information protection and disclosure Division (ss 107-113) establishing data categories and disclosure obligations between the chief executive officer and law enforcement and other authorities.
• Delegation, contracting and administrative delegation powers for the Minister and chief executive officer (ss 124-124B).
• Creation of regulation-making powers that permit traffic management plans, removal of hazards, creation of charges and application of PPSA remedies (s 114(1A)(i) and related provisions).
• Changes to terminology, penalties and to the substantive offence and compliance regime to reflect the applied national law and updated enforcement approach (numerous sections in ss 45-96).

Adjustments to other State statutes. Part 10 contains consequential amendments to other Acts to align with the new arrangements including amendments to cross-references, identity card and certificate terminology, and inclusion of new detention and forfeiture provisions in personal property securities cross-references (e.g. ss 101-123). The Western Australian Marine Amendment Act 1987 is repealed (s 120). Amendments ensure consistent references to "vessel" and to federal navigation and shipping Acts that have been modernised, such as substitution of Navigation Act 2012 for earlier Navigation Act references (s 108, s 117).

Transitional provisions. Sections 35 and 137 authorise transitional regulations, but limit them to two years after commencement day and protect persons from retrospective prejudicial effects. Section 136 provides for certain existing orders, notices, exemptions and certificates in force immediately prior to commencement to continue under the new scheme, subject to the Act.

Publication, compilation and staging. The compilation table included at the end of the Act lists which provisions have come into operation and the varying commencement dates noted above. The Act is compiled and published under WA legislative procedures, with uncommenced provisions flagged in the uncommenced provisions table.

The Act as presented contains no reported decisions or litigation history. The source text does not cite any cases or judicial decisions. It does, however, ensure mechanisms for judicial and tribunal review are available under the new statutory framework.

Key procedural features relevant to litigation and dispute resolution:

• Anti-double-jeopardy protection: s 23 bars punishment under the applied provisions where the act has already been punished under the Commonwealth domestic commercial vessel national law.
• Administrative review pathways: the applied provisions and the Act import Commonwealth administrative laws such as the Administrative Appeals Tribunal Act 1975 (Cth) for matters arising under the applied provisions (s 24(1)), though Part IVA is excluded and s 24(4) asserts that a provision purporting to confer jurisdiction on a federal court is taken not to have that effect. Practitioners should therefore expect Commonwealth administrative-law remedies to be available in WA in many cases, subject to the limits the Act imposes.
• State Administrative Tribunal review: s 63C gives a right to apply to the State Administrative Tribunal for review of decisions to detain vessels and declarations of forfeiture made under the amended Marine Act. This creates a specific, State-based administrative review route for detained vessel decisions.
• Judicial orders for retention of seized things: s 41 allows inspectors to apply to a judicial officer (a magistrate) to permit retention of seized things for further investigation where proceedings have not been commenced, with limits (total retention not to exceed three years).
• Entrenchment of federal interpretive materials: s 17 imports the Acts Interpretation Act 1901 (Cth) for interpretation of applied provisions, meaning litigation over statutory construction of the applied provisions in WA will be governed by Commonwealth interpretive principles.

Because the Act is recent and the source contains no case law, practitioners will need to monitor how WA and Commonwealth courts and tribunals interpret the interplay between the applied provisions, Commonwealth administrative and criminal laws as applied by s 21 and s 24, and the WA amendments to the Marine Act including the new inspection and seizure powers. Matters likely to generate litigation include the ambit of inspection and data extraction powers over electronic equipment (ss 9, 11, 35), challenges to vessel detention and forfeiture (ss 61-63B), confidentiality and privacy obligations in relation to information disclosures (ss 108-113), and procedural compliance with tabling and disallowance processes for Commonwealth amending Acts and legislative instruments (Part 2, ss 7-16).

Applied provisions read as Commonwealth law but operate as State law. Sections 6(2) and 21(2) create a hybrid status: the Domestic Commercial Vessel National Law applies as a law of the State, but the Act treats offences and administrative matters as if they were Commonwealth matters for specified purposes. That hybridisation can create jurisdictional and procedural complexity. For example, s 21(2) applies relevant Commonwealth criminal laws as laws of the State in relation to offences against the applied provisions, but s 21(4) allows State regulations to limit that effect. Practitioners should not assume that Commonwealth practice applies automatically in every procedural respect; s 24(4) explicitly disapplies any provision of a Commonwealth administrative law that purports to confer federal court jurisdiction.

Publication, tabling and disallowance timelines are strict and have operational consequences. Legislative instruments under the Scheduled Law made on or after 15 May 2023 must be published within 18 days in the Gazette or on the WA website and be laid before both Houses within six sitting days (ss 14-15). Failure to publish or table can cause the instrument to cease to have effect for WA (s 15(3)). Similarly, Commonwealth amending Acts that would otherwise change the national law as it applies in WA are subject to notice periods and possible disallowance under ss 7-9. This creates potential drift between Commonwealth and State operation and means national amendments may not be enforceable in WA until State tabling and disallowance windows elapse and proclamation procedures are completed.

Different interpretive Acts apply. Section 17 makes the Commonwealth Acts Interpretation Act 1901 applicable to interpretation of the applied provisions in WA and disapplies the WA Interpretation Act 1984. That affects statutory construction norms, time computation and other interpretive matters. Counsel should check whether established WA interpretive authorities remain applicable or are displaced in the specific procedural context.

Information disclosure carries criminal risk. Section 108 criminalises improper recording, use or disclosure of information obtained performing functions under the Act with imprisonment up to 12 months or fine up to $12,000. Yet the Act simultaneously requires the chief executive officer to disclose broad categories of information to the Commissioner of Police (s 109) and permits disclosure to relevant authorities and prescribed persons (ss 110-111). The interaction between mandatory disclosures, permissible uses and confidentiality obligations must be navigated carefully; a practitioner handling records should check whether a disclosure is authorised by specific Act clauses before any release.

Warrantless boarding and electronic data extraction. Inspectors may board vessels without consent or warrant for specified purposes (s 7). They may operate and extract data from electronic equipment on board where they have reasonable grounds that this can be carried out without damage (s 9(3)-(5)). An inspector may remove an information storage device or transfer data to a device brought onto the vessel (s 9(4)). Seizure of equipment that has been operated is constrained by s 11(3) and s 13(6), but the tests are fact-sensitive. Cases involving encrypted devices, remote wiping, cross-jurisdictional data or privileged material will present practical and legal difficulties. Practitioners should note that an inspector can secure equipment for up to 72 hours pending expert assistance (s 35(2)), and longer retention requires judicial authorisation (s 36).

Detention, cost recovery and potential for owner liability. The chief executive officer may detain an unsafe pleasure or prescribed vessel and move or store it (s 61(1)). Section 122 makes owners liable to pay reasonable costs of detention and inspection recoverable by the chief executive officer, but if there was no reasonable cause for detention the State is liable to pay the owner’s costs and compensation (s 122(3)). Practically, owners need to be prepared for immediate storage and removal costs and to pursue recovery later if detention proved unjustified. Forfeiture declarations under s 63B may apply where owners cannot be located or refuse to accept return after specified periods.

Delegation and delegation-to-private actors. Section 124B allows the chief executive officer to contract out performance of functions to the Commissioner of Police, local government or any other person or body, whether or not that entity is a public actor. This means private entities might perform statutory functions including disclosure handling and inspections, subject to agreement terms and the chief executive officer’s power to disclose marine qualification, mooring and vessel information to the contracted party (s 124B(5)). Delegations and agreements must be documented and carefully reviewed to ensure legal accountability and compliance with information protection obligations.

Fees generally flow to National Regulator; State may set delegate fees. The Act directs that fines and other money under the applied provisions are payable to the National Regulator (s 28(1)), but s 26 allows State regulations to provide for fees payable to the State where State officers act as delegates or accredited persons conduct assessments. This split revenue model can produce perverse incentives unless governance arrangements are clear; practitioners should identify whether fees payable in particular transactions go to the National Regulator or to the State.

Regulations may empower temporary State orders and removal without notice. Section 114(1B)-(1D) allows regulations to authorise the chief executive officer to deal with matters by order when regulations do not adequately deal with the matter and urgent temporary action is needed, subject to conditions that the order is temporary and that the chief executive officer is satisfied the regulations do not adequately deal with the matter. Regulations relating to removal of vessels must provide that a vessel cannot be removed unless it is an immediate danger or the owner has been given at least seven days’ notice, but removal without notice is permitted in immediate danger circumstances, with notice to owner after removal mandatory (s 114(1D)). Practitioners should monitor any State orders published on the WA legislation website for temporary traffic or safety measures that affect operations.

Transitional windows are finite. Transitional regulations may be made for two years after commencement day only (s 35(3), s 137(3)). The State has limited time to make savings and transitional regulation-making choices, which may affect licence renewals, certificate recognition, and existing authorisations that need to be migrated to the new scheme.

Map affected vessels and roles. Organisations and vessel owners should first map which of their vessels fall within the applied Domestic Commercial Vessel National Law, which are pleasure vessels or prescribed vessels under the amended WA Marine Act definitions (s 3(1) insertions and s 3A). This includes identifying hire-and-drive vessels, domestic commercial vessels, prescribed vessels and any seaplanes to which the regime applies (s 100). For each vessel identify the registered owner, master, operator, and where applicable, hirers. The Act treats vessels connected with the State in a broad way (s 3A(2)), including registration status, ownership by persons ordinarily resident or with principal place of business in WA, and regulatory declarations in regulations.

Update compliance manuals to reflect new duties and reporting obligations. Masters and owners must comply with duties after marine incidents: stand by and render assistance, exchange contact and identification details, report incidents to the chief executive officer promptly and provide a written report within 72 hours in an approved form (ss 64A(1), 64B(2)-(4)). Owners and masters must preserve material relevant to investigations (s 64C). Internal compliance manuals should reflect these timelines, reporting forms and procedures for evidence preservation.

Prepare for inspections and electronic data requests. Inspectors may board vessels without warrant in specified circumstances (s 7) and may operate and extract information from electronic equipment and storage devices on board or on premises (ss 9(3)-(4), 13(3)-(4)). Organisations should prepare procedures for handling inspector visits: identify who speaks to inspectors, ensure identity cards are requested and retained copies, maintain a secure place for production of documents, have an internal log of equipment and data on board, and establish protocols for granting consent or challenging entry where lawful. Train masters and owners on their obligations to provide names, addresses and identity evidence when reasonably required (s 9(2)(i)) and the penalties for false information (s 10(2)).

Record-keeping and information governance. The Act’s information protection and disclosure framework requires careful data governance. Section 108 prohibits unauthorised recording, use or disclosure of information obtained while performing functions under the Act; penalties include imprisonment or fines. At the same time ss 109-113 mandate or permit disclosure of specified categories of information to police, other authorities and prescribed persons. Compliance steps should include:

• An information inventory matching datasets in s 107 (marine qualification information, mooring information, incident information, infringement notice information, vessel information, offence information) to internal repositories.
• Access controls that ensure disclosures occur only where authorised by ss 108-113.
• Documented procedures for disclosure requests from police and relevant authorities and for providing de-identified data or responses to automated systems (s 113).
• Training and agreements for external entities receiving disclosures under s 124B agreements to restrict use to authorised purposes and to handle data securely.

Manage delegation and contracting risks. The chief executive officer may delegate powers and enter agreements for the performance of functions by others, including local government and private parties (ss 124-124B). Where your organisation enters into such agreements, ensure contracts specify data handling obligations consistent with ss 108-113, liability allocation for errors or unlawful disclosures, indemnities for costs in relation to detained vessels, and clarity about who recovers fees and charges under s 26 and s 28.

Plan for detention, removal and cost exposure. Owners should put in place contingency plans for vessel detention and removal under ss 61-63B and removal under s 114(1A)(i). Contingency planning should cover storage logistics, contractual arrangements with hauliers and storage providers, insurance coverage for detention and storage costs, communications protocols for initial notice under s 61(2), and steps to contest detention including preparing for SAT review under s 63C. Keep timely records to prove reasonable cause for actions taken in relation to vessels to support legal defences and reimbursement claims if detention is later found unjustified (s 122).

Monitor Commonwealth amending Acts and WA tabling/disallowance processes. Because the applied provisions include Commonwealth legislative instruments and amending Acts only to the extent they are published, tabled and not disallowed for WA (ss 7-16), entities operating in WA should track both Commonwealth regulator changes and WA Parliament tabling notices. The WA mechanism means some Commonwealth changes may not be effective in WA until the State completes tabling and proclamation steps under s 9. Entities should subscribe to the WA legislation website and the National Regulator’s updates to know when instruments are published and tabling deadlines occur.

Use exemptions and equivalence processes where appropriate. The chief executive officer may exempt persons or classes of vessel from specified provisions of the Act or regulations if compliance is unreasonable or impractical, and may grant exemptions for aquatic events subject to conditions (s 115A). If compliance creates hardship or is not practical, apply early for exemptions and ensure applications include mitigation measures and safety plans.

Ensure compliance with improved register and mooring information obligations. The Act identifies mooring information as a regulated dataset and allows for mandatory disclosure to police and other authorities (s 107 definition and s 109). Owners and operators should ensure that mooring authorisation records, transfers and usage logs are accurate, that contact details and registration data are current, and that they respond promptly to disclosure requests.

Prepare for automated disclosure systems. Section 113 contemplates disclosure by means of an automated system and allows such systems to provide retrieval and alert functions subject to regulations. If your organisation will be a recipient of automated disclosures or will rely on data retrieved that way, ensure technical and governance controls to validate data integrity and to respond to alerts.

Review fees and payments. Understand where fees are payable to the National Regulator versus the State. Most fines and fees under the applied provisions are payable to the National Regulator (s 28), but s 26 allows State regulations to provide for fees payable to the State where State officers act as delegates or accredited persons conduct assessments. Confirm fee schedules and payment routes for certification, assessment and infringement processes.

Document incident response and preservation. Because failing to preserve evidence after a marine incident is a specific offence for masters and owners (s 64C), ensure incident response plans include steps to preserve scene and data, log preservation actions, and secure witnesses and physical evidence. Establish templates for the immediate oral report to the chief executive officer and the required written report within 72 hours in an approved form (s 64B(2)-(4)).

Legal and insurance review. Review existing insurance, indemnities and contractual clauses in light of new detention, forfeiture and cost recovery provisions (ss 61, 122, 63B). Legal counsel should assess whether existing policies provide adequate indemnity for State detention costs and whether contracts with hirers and charterers allocate risks appropriately.

Maintain training and governance records. Train masters, crew, operators and relevant administrative staff about inspector powers, production obligations, information handling constraints and incident reporting duties. Keep records evidencing training as these may be material in any enforcement or tribunal review.

Monitor regulations under s 33 and s 114. Many important operational powers are delegated to regulation: designation of waters, traffic management plans, removal of hazards and creation of charges are all made or potentially made by regulation (s 114(1A)). Keep a regulatory watch for instruments made under s 33 and s 114 that will affect operations.

In short, compliance requires updating operational manuals, information governance, insurance and contractual arrangements, staff training, and a close watch on both Commonwealth regulatory change and WA tabling, proclamation and regulation-making processes.