Shipping and Pilotage Act 1967

The Act primarily affects vessel owners, masters and operators navigating or berthing within declared ports, controlled areas, boat harbours and mooring control areas throughout Western Australia. Any person in control of a vessel that enters a port, uses pilotage facilities, or occupies a mooring is subject to conservancy dues (s 8), pilotage charges (s 9) or boat harbour and mooring charges (s 9A).

Harbour masters appointed under section 4, deputy harbour masters appointed under section 7A, and acting harbour masters appointed under the Interpretation Act 1984 s 52(1)(b) are directly empowered and constrained by the Act. Their functions extend to controlling vessel movements (s 5(1)), issuing removal notices (s 6(1)), demanding costs (s 5(2)), selling wreckage (s 5(3)), ordering scuttling (s 7(1)), and exercising powers in control areas outside ports.

The CEO of the Department (defined in s 3) plays a central administrative role. Where the CEO is the controlling authority of a boat harbour or mooring control area, the CEO assumes the powers and duties of a harbour master under sections 5 and 6 as modified by section 6A(2). The CEO may nominate or authorise deputy harbour masters (s 7A(3)), approve certain mooring control area developments (s 12(1)(bb)), and exercise delegated powers under section 11A(3A). The CEO also appears in tonnage ascertainment regulations (s 12(1a)(g)) and in transitional provisions.

Body corporates declared as controlling authorities under section 10(2)(ba) are likewise affected. They exercise modified harbour master functions (s 6A(3)), may delegate internally (s 11A(3C)), incur cost recovery rights and liabilities, and are protected by the section 8A liability shield when acting in good faith.

Pilots and masters seeking pilotage exemption certificates are directly regulated under the licensing regime contemplated by section 9(2). The regulations may prohibit unlicensed piloting (s 9(2)(ag)) and create review rights to the State Administrative Tribunal for licence and certificate decisions (s 9(2)(ae)).

Owners of wreckage or unserviceable vessels face specific obligations. They may receive notices under section 5(2) or 6(1), become liable for removal costs (s 5(2), s 6(2)), and risk sale of their property (s 5(3)). Bona fide purchasers of sold wreckage obtain good title under section 5(4A).

Persons who interfere with moorings, beacons, buoys, lights or other facilities, deposit or remove earth or spoil beneath high water mark, or fail to comply with harbour master, CEO or controlling authority directions commit offences under section 11 and face a $12,000 penalty.

The Minister holds appointment powers (ss 4, 7A(1)), regulation initiation, and delegation authority (s 11A(1)). The Crown is the ultimate recipient of certain proceeds and dues, yet is relieved of liability under section 8A(2).

Finally, the broader maritime community—recreational boaters, fishing operators, charter companies and commercial shipping interests—must navigate the declared areas, comply with signals and directions, pay prescribed charges, and obtain necessary licences or exemptions. The Act therefore casts a wide net across public servants, private operators, corporate entities and individual mariners.

Key duties fall heaviest on vessel masters and owners. Masters must comply with every order or direction issued by a harbour master under sections 5, 6 or 7 (s 11(a)), or by the CEO or controlling authority under the extended operation of those sections (s 11(ba)). Failure is an offence. Masters must also ensure pilotage facilities are used where required unless a valid exemption certificate is held and all conditions are met (s 9(2)(af)–(ag) and associated regulations).

Owners are obliged to pay conservancy dues upon entry (s 8(1)), pilotage charges (s 9(1)), boat harbour dues and mooring charges at prescribed intervals (s 9A(1)). They must remove vessels or wreckage when lawfully directed (ss 5(2), 6(1)) and bear the risk and expense of any remedial action taken by authorities after non-compliance (s 12(1)(c)).

Controlling authorities (whether CEO or body corporate) owe duties to exercise their modified harbour master functions in accordance with the Act, to maintain safe navigation within mooring control areas (s 12(1)(bb)), and to act consistently with any marine safety plan referenced in the definitions (though the plan itself is defined by cross-reference to s 7B(1), which is not reproduced in the supplied text).

Rights are more limited but significant. Section 9(2)(ae) contemplates regulations allowing a person aggrieved by a pilot’s licence decision, condition imposition, suspension, revocation or non-renewal to apply to the State Administrative Tribunal for review. A person who purchases wreckage sold under section 5(3) in good faith receives statutory title against all others, including the true owner (s 5(4A)).

Harbour masters, deputies, CEOs, controlling authorities, their delegates and assistants enjoy a broad good-faith immunity under section 8A. The immunity covers both acts and omissions, extends to the Minister and Crown, and applies even where the function could have been performed absent the Act. This is a powerful shield against tortious liability.

Vessel owners or masters may, in limited circumstances, benefit from regulatory exemptions for classes of vessel or particular circumstances (ss 8(2), 9(2)(c), 9A(2), 12(2)(j)). Regulations may also permit certain persons to move vessels without a licensed pilot (s 9(2)(af)(i)).

The Act preserves the ability of the Minister, CEO and controlling authorities to act through officers, employees or agents notwithstanding delegation provisions (s 11A(5)), giving principals operational flexibility.

Tonnage ascertainment rights and obligations are detailed. Authorised persons may board, inspect, measure, survey, detain vessels and require unshipment of goods at the owner’s risk and expense (s 12(1a)(f)). Owners, masters and agents must produce certificates and afford facilities when requested (s 12(1a)(h)–(i)).

In emergency situations the harbour master’s power to order scuttling is not matched by an express right of compensation in the Act itself, although common-law or other statutory remedies may exist outside the text.

The principal offence provision is section 11. A person who fails to comply with a harbour master, CEO or controlling authority order or direction under sections 5, 6, 7 or the extended operation of those sections, unlawfully interferes with mooring, beacon, buoy, light or other facility, or deposits or removes earth or spoil beneath high water mark within a port, boat harbour or mooring control area, commits an offence punishable by a fine of $12,000. No term of imprisonment is attached to this statutory offence.

Section 12(2) authorises regulations to create additional offences punishable by a fine not exceeding $12,000 and imprisonment for a term not exceeding 12 months. Regulations may also make offenders liable to reimburse the Crown (or relevant authority) for all expenses incurred by reason of the offence, recoverable as a debt.

Enforcement tools are wide. Harbour masters and authorised persons may board vessels and enter places (s 12(1)(d)). Regulations may authorise detention of vessels for tonnage purposes (s 12(1a)(f)(ii)) and may require actions at the risk and expense of the non-compliant party (s 12(1)(c)). Cost recovery for wreckage removal or vessel removal is by notice, followed by sale if unpaid (s 5(3)) or civil action as a debt (s 6(2)).

The Act contains no express infringement notice or on-the-spot fine regime; enforcement appears to rely on prosecution for the section 11 offence or regulatory offences, together with civil debt recovery. The protection from liability in section 8A shields enforcement actors from counter-claims provided they act in good faith.

Sale of wreckage under section 5(3) after 28 days’ non-payment or inability to locate the owner is a self-executing remedy. Proceeds are applied first to sale costs, then removal costs, with any balance paid to the owner or credited to the Consolidated Account. Good title conferred on the purchaser (s 5(4A)) prevents later proprietary claims.

Delegation of enforcement-related powers is expressly permitted (s 11A), allowing operational efficiency while preserving the non-delegation rule for delegates themselves (s 11A(3)).

The Act is expressly linked to several statutes. Section 2(3) applies the Interpretation Act 1984 to the repeal of the Shipping and Pilotage Act 1855, preserving offices, appointments, proclamations, regulations and acts done under the repealed legislation. The same Interpretation Act is invoked for acting harbour master appointments (s 3 definition of harbour master, s 7A(4)) and for continuation of pre-2006 appointments (s 12(1)(i)).

Section 10(1b) excludes ports defined in the Port Authorities Act 1999 s 3(1) from being ports under this Act, carving out major commercial ports and preventing overlapping declarations. This creates a clear division of regulatory responsibility between Port Authority ports and the smaller ports, boat harbours and mooring areas governed by this Act.

The Financial Administration and Audit Act 1985 (now largely superseded) and Consolidated Account references appear in older versions, but current text directs balance proceeds to the Consolidated Account (s 5(3)).

Regulations may adopt codes, standards or subordinate legislation made under any other Western Australian Act, a Commonwealth Act, a United Kingdom Act, or standards issued by Standards Australia, the British Standards Institution, The Association of Australian Port and Marine Authorities or any other specified body (s 12(2)(c)). This incorporation-by-reference mechanism allows the Act to remain current without constant legislative amendment.

The State Administrative Tribunal is the designated review body for pilot licensing decisions once regulations are made under s 9(2)(ae). This integrates the Act with the State Administrative Tribunal Act 2004.

Section 8A’s liability protection operates in addition to any common-law or other statutory immunities. Its subsection (3) makes clear the protection is not limited to functions that could only be performed because of the Act.

The marine safety plan referenced in the definition section (s 3) is defined by reference to s 7B(1), indicating interaction with broader marine safety legislation not reproduced in the provided text.

Tonnage provisions in s 12(1a)–(1b) interact with Commonwealth registration legislation by permitting reference to certificates of registry or tonnage issued under federal law.

No direct interaction with the Navigation Act 2012 (Cth) or the Marine Safety (Domestic Commercial Vessel) National Law is spelled out, but the regulation power’s ability to adopt Commonwealth subordinate legislation (s 12(2)(c)) provides a bridge where necessary.

The compilation table and amendment history within the text reveal a series of targeted expansions. The Shipping and Pilotage Amendment Act 2006 (No. 71 of 2006) was the most significant single modernisation. It inserted section 4 (new appointment power), substituted section 5, repealed and replaced aspects of section 6, inserted section 7A (deputy harbour masters), inserted section 8A (liability protection—although later amended), substantially rewrote section 9 to introduce detailed pilot licensing and SAT review, amended section 10 to exclude Port Authority ports and add controlled areas, inserted section 11A (delegation), and expanded the regulation power in section 12. These changes responded to the need for clearer administrative structures, modern liability protection, professionalisation of pilotage through licensing rather than pure appointment, and flexibility in smaller vessel management. The 2006 Act also deleted the Schedule and introduced transitional provisions for existing harbour masters and ports.

The Ports Legislation Amendment Act 2014 (No. 9 of 2014) inserted section 6A (extended application to declared areas with differential rules for CEO and body corporate), amended section 7, inserted the current section 8A in its fuller form, amended offence and delegation sections, and updated terminology. This reform recognised that boat harbours and mooring control areas required tailored application of harbour master powers without forcing every small facility to have a formally appointed harbour master.

The Ports Legislation Amendment Act 2019 (No. 2 of 2019) made further definitional changes, updated references to the CEO and Department, amended sections 3, 6A, 9A, 10, 11 and 12, and refined controlling authority concepts. These amendments continued the trend toward centralised departmental oversight while preserving local body corporate involvement where appropriate.

Section 12(1a) and (1b) on tonnage were expanded to give authorised persons clear inspection, detention and cost-recovery powers, reflecting contemporary needs for accurate revenue collection based on vessel size.

Uncommenced provisions from the 2006 and 2019 Acts (noted in the uncommenced provisions table) suggest further fine-tuning of pilotage and mooring arrangements remains pending proclamation.

Each wave of amendment has sought to adapt the 1967 framework to contemporary maritime administration, devolution to local controlling authorities, risk management, and alignment with broader port and marine safety reforms without wholesale replacement of the Act.

The text of the Act itself contains no recitals of specific court decisions. However, several provisions are framed in ways that suggest legislative awareness of potential disputes. The good title conferred by section 5(4A) on a bona fide purchaser of sold wreckage is clearly designed to eliminate title-based litigation following statutory sale, mirroring long-standing wreck and salvage jurisprudence.

The repeated use of the phrase “in the opinion of the harbour master” (s 6(1)) or “is satisfied” (s 7(1)) imports a subjective jurisdictional fact that, while broad, remains reviewable for bad faith or irrationality under general administrative law principles. Section 8A’s good-faith requirement similarly sets the boundary of the immunity; actions taken in bad faith would fall outside protection and expose the actor and, potentially, the Crown.

The delegation provisions in section 11A(4) contain an evidentiary presumption that a delegate is acting within the terms of the delegation unless the contrary is shown. This reverses the onus on that factual issue in any litigation.

Controversies are likely to arise around the boundary between this Act and the Port Authorities Act 1999. Section 10(1b)’s prohibition on overlapping declarations prevents direct conflict but may generate disputes where a vessel movement begins in a Port Authority port and continues into a controlled area under this Act.

The scuttling power in section 7 is extraordinary and has the potential to generate significant compensation claims or coronial interest if lives are lost. The Act provides no express compensation mechanism, leaving any claim to general law.

Pilot licensing decisions reviewable by the State Administrative Tribunal under regulations made pursuant to section 9(2)(ae) will generate a body of tribunal jurisprudence on qualifications, conditions and procedural fairness. The breadth of the regulation power to prescribe “procedures and prerequisites” (s 9(2)(ac)) and “other matters relating to the issue or renewal” gives the executive considerable latitude, which may itself be challenged on ultra vires grounds in the Supreme Court.

Mooring control area development approvals requiring CEO and body corporate consent (s 12(1)(bb)) could become flashpoints between recreational boat owners, local governments and environmental interests, particularly where changes affect safe navigation or visual amenity.

The tonnage ascertainment powers, including vessel detention and compulsory unshipment at owner risk and expense (s 12(1a)(f)), are robust and could be challenged if used disproportionately or without procedural fairness.

Overall the Act’s structure—broad powers, good-faith immunities, presumptions of regularity and external review only where regulations expressly provide—suggests a legislative preference for operational certainty over frequent judicial second-guessing.

Most practitioners assume that once a harbour master is appointed under section 4 the same person automatically holds authority over every boat harbour and mooring control area. Section 6A demonstrates this is incorrect. The powers only apply to a declared area if the CEO or a body corporate has been specified as the controlling authority under section 10(2)(ba). Even then, the statutory language is modified—opinion under section 6(1) becomes the opinion of a delegate when a body corporate is involved, and cost recovery runs to the body corporate rather than the Crown. Failing to check the controlling authority proclamation before issuing a direction can render the direction ultra vires.

The liability shield in section 8A(4) extends to “anything done by a person in good faith under the authority of a harbour master [or] in compliance with an order, direction or requirement”. The definition in subsection (5) expressly includes a controlling authority or the CEO within the term “harbour master” for this purpose. Many operators wrongly believe the immunity is limited to public servants; it protects private contractors and body corporate employees when they act under lawful authority.

Section 5(4A) is a deceptively simple good-title provision. It operates only after a sale conducted under subsection (3). If the harbour master sells wreckage without first serving a notice where the owner is known, or without making reasonable enquiries, the statutory title may not pass. The purchaser’s good faith is necessary but not sufficient if the statutory preconditions to sale have not been met.

Controlled areas declared under section 10(1c) lie outside any port yet still constitute pilotage areas (s 3). Vessel masters sometimes assume pilotage obligations cease at the port limit; they do not if the vessel is in a declared controlled area. The prohibition on moving a vessel without a licensed pilot (s 9(2)(af)) applies with equal force.

The regulation-making power in section 12(2)(h) allows regulations to apply according to an approval or administrative decision “notwithstanding that such approval or other decision may not have been, or may not have been primarily, given or made for the purposes of this Act”. This unusual clause permits cross-authorisation from environmental, planning or local government approvals to satisfy maritime conditions—an elegant but easily overlooked compliance shortcut.

Uncommenced provisions from the 2006 and 2019 Acts still sit in the statute book. Practitioners who rely solely on the compilation table without checking the uncommenced provisions table on the WA Legislation website may inadvertently assume a fully operational licensing regime that has not yet commenced.

The definition of “wreckage” in section 5(4) expressly excludes “a vessel that is afloat”. Therefore the summary removal and sale powers do not apply to floating but unseaworthy vessels; the slower unserviceable vessel procedure in section 6 must be used instead. Misclassifying a floating wreck can invalidate the entire enforcement process.

Finally, section 11 offences carry only a fine, yet regulations made under section 12(2)(a) can impose up to 12 months’ imprisonment. Prosecutors sometimes charge the regulatory offence to obtain a custodial sentencing option, but must prove the elements of the specific regulation rather than the simpler section 11 breach. Charging choices therefore carry strategic weight.

Compliance begins with accurate identification of the relevant area. Check the regulations and proclamations made under section 10 to determine whether a location is a port, controlled area, boat harbour or mooring control area, and who the controlling authority is. Only then can the correct decision-maker (harbour master, CEO or body corporate) be approached.

Vessel operators should maintain a current register of dues obligations. Conservancy dues are triggered on entry (s 8(1)); pilotage charges on use of facilities within a pilotage area (s 9(1)); boat harbour and mooring charges at prescribed intervals (s 9A(1)). Automated billing systems linked to vessel tracking are advisable for frequent users.

Masters must obtain and carry either a pilot’s licence for the relevant pilotage area or a valid pilotage exemption certificate together with any endorsements (s 9(2)). Conditions on those documents must be strictly observed; breach triggers both the offence provisions and potential liability for pilotage charges that would have been payable (s 9(2)(e)).

When a direction is received from a harbour master, CEO or controlling authority, immediate compliance is the safest course. If the direction appears unlawful, the correct response is to comply and then challenge rather than risk the section 11 offence. Records of all directions, including time, content and issuing officer, should be kept.

Organisations operating boat harbours or mooring control areas must ensure a valid proclamation under section 10(2)(ba) names them as controlling authority. Internal delegations under section 11A(3C) should be executed in writing and limited to officers or employees. Training on the modified application of sections 5 and 6 under section 6A is essential so that delegates understand whose “opinion” or “satisfaction” is legally relevant.

Harbour masters and deputies should have their appointments, terms, conditions and any revocation procedures documented in accordance with regulations made under section 12(1)(e)–(i). Deputy harbour masters must understand the limits of their authority under section 7A(2), (3) and (5), particularly the supervision requirement when the harbour master is available.

For tonnage-sensitive charges, owners and masters must be prepared to produce certificates of registry and tonnage, allow boarding, inspection, measurement and, if required, unshipment of cargo at their own risk and expense (s 12(1a)). Disputing a tonnage calculation requires prompt engagement with the authorised person rather than later litigation.

Emergency procedures should be pre-planned. Masters must be aware that a lawful scuttling order under section 7 must be obeyed “forthwith”. Refusal exposes the master to both the section 11 offence and potential personal liability if the harbour master then causes the scuttling.

All personnel should be trained on the section 8A good-faith requirements. Contemporaneous file notes recording the honest belief that the action was within power greatly assist any later immunity claim.

Finally, organisations should maintain a watching brief on regulations made under the expansive section 12 power. Because regulations can adopt external standards, impose new conditions on existing licences, alter exemption classes or change enforcement mechanisms without primary legislation, annual regulatory audits are prudent. Where a marine safety plan is required under the definition in section 3, it must be prepared, maintained and followed.

Compliance is not a static checkbox exercise but a continuing obligation to track area declarations, appointment instruments, delegations, current regulations and any uncommenced provisions that may commence without further notice.