Part 10Repeal and transitional provisions

Part 10 — Repeal and transitional provisions Division 1 — *Western Australian Marine Act 1982* 135. Repeals 256 Division 2 — *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* 136. Certain orders, notices, exemptions and certificates 256 137. Transitional regulations 257 Division 3 — *Western Australian Marine Amendment Act 2023* 138. Offences against repealed section 59 258 139. Transitional regulations 259 Schedule 1 — Container Convention Schedule 2 — Limitation Convention Schedule 3 — Prevention of Collisions Convention Schedule 4 — Safety Convention Schedule 5 — 1978 Protocol relating to Safety Convention Notes Compilation table 372 Uncommenced provisions table 374 Other notes 375 Defined terms An Act to regulate navigation of, and to provide for the safe use of, waters in or relating to the State, and for related purposes. [Long Title inserted: No. 24 of 2023 s. 37.] ## Part 1 — Preliminary [Heading amended: No. 24 of 2023 s. 38.] ##### 1. Short title This Act may be cited as the *Western Australian Marine Act 1982*. ##### 2. Commencement The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation after the approval of Her Majesty thereto has been proclaimed in the State. ##### 3. Terms used (1) In this Act, unless the contrary intention appears — alcohol or drug testing requirement, in relation to a person, means a requirement imposed on the person under Part 3B Division 2 or 3; analyst has the meaning given in the *Road Traffic Act 1974* section 65; authorised person means a person designated under section 117(1) as an authorised person for the purposes of the provision in which the term is used; BAC, in relation to a person, means the concentration of alcohol in the person’s blood, expressed in grams of alcohol per 100 mL of blood; Example for this definition: A BAC of 0.08 g is a concentration of 0.08 g of alcohol per 100 mL of blood. bodily harm has the meaning given in *The Criminal Code* section 1(1); Chemistry Centre (WA) means the body established by the *Chemistry Centre (WA) Act 2007* section 4(1); chief executive officer means the chief executive officer of the Department; Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the *Police Act 1892*; dangerous goods has the same meaning as in the *Dangerous Goods Safety Act 2004*; dentist means a person — (a) registered under the *Health Practitioner Regulation National Law (Western Australia)* in the dental profession; and (b) whose name is entered on the dentists division of the Register of Dental Practitioners kept under that Law; Department means the department of the Public Service principally assisting the Minister in the administration of this Act; detained vessel means a vessel detained under section 61; domestic commercial vessel has the meaning given in the Scheduled Domestic Commercial Vessel National Law section 7; drug has the meaning given in the *Road Traffic Act 1974* section 65; drugs analyst has the meaning given in the *Road Traffic Act 1974* section 65; equipment in relation to a vessel, includes every thing or article belonging to or to be used in connection with, or necessary for the navigation and safety of, the vessel and, in particular, includes boats, tackle, pumps, apparel, furniture, lifesaving appliances, spars, masts, rigging, sails, fog signals, lights, signals of distress, signalling lamps, pilot ladders, radio equipment, medicines, medical and surgical stores and appliances, fire prevention, detecting and extinguishing appliances, inert gas systems, echo‑sounding devices, mechanical pilot hoists, buckets, compasses, charts, axes, lanterns and gear and apparatus for loading or unloading, or otherwise handling, cargo, and includes also such other things as may be prescribed; explosives means a substance or article used or manufactured with the purpose of producing a practical effect by explosion or a pyrotechnic effect; foreign vessel has the meaning given in the *Navigation Act 2012* (Commonwealth) section 14(1); former Navigation Act means the *Navigation Act 1912* (Commonwealth) as in force before it was repealed; grievous bodily harm has the meaning given in *The Criminal Code* section 1(1); identity card means an identity card issued under section 118; infringement notice has the meaning given in section 132(1); inspector means — (a) a person designated under section 117(1) as an inspector for the purposes of the provision in which the term is used; or (b) a member of a class of police officer designated under section 117(2) as inspectors for the purposes of the provision in which the term is used; leave vessel, accompany officer or wait requirement, in relation to a person, means a requirement imposed on the person under section 75G; marine qualification means — (a) a WA marine qualification; or (b) a qualification, permit, licence or certificate (however described) issued to a person — (i) in relation to navigating or operating a vessel (as those terms are defined in section 75AA(1) and (2)), or required by crew of a vessel; and (ii) under a law of another Australian jurisdiction or an overseas jurisdiction; marine qualification information has the meaning given in section 107; master, of a vessel — (a) means the person who has command or charge of the vessel; but (b) does not include a pilot; medical practitioner means a person registered under the *Health Practitioner Regulation National Law (Western Australia)* in the medical profession; mooring information has the meaning given in section 107; nurse practitioner means a person registered under the *Health Practitioner Regulation National Law (Western Australia)* in the nursing profession whose registration under that Law is endorsed as nurse practitioner; officer — (a) of a body corporate — has the meaning given in the *Corporations Act 2001* (Commonwealth) section 9; and (b) of the Department — means a public service officer in the Department; owner in relation to a vessel means any person exercising, or discharging or claiming the right or accepting the obligation to exercise or discharge, any of the powers or duties of an owner whether on their own behalf or on behalf of another and includes a person who is the owner jointly with any other person or persons and an officer of a body corporate; partially smooth waters means waters within such geographical limits as are prescribed for the purposes of this definition; passenger means every person on board a vessel other than — (a) the master, members of the crew, other persons employed or engaged in any capacity on board the vessel in the business of that vessel; and (b) a child under one year of age; passenger vessel means a vessel that carries, or is certified to carry, more than 12 passengers; personal watercraft — (a) means a craft that is — (i) powered by a motor; and (ii) designed (whether or not exclusively) to be operated by a person on or astride the hull and not within it; and (b) includes a craft that was designed (whether or not exclusively) as a personal watercraft but which has been — (i) modified; or (ii) transformed into some other sort of vessel; pilot means a person who does not belong to, but has the conduct of, a vessel; pleasure vessel — (a) means a vessel held wholly for the purpose of recreational or sporting activities and not for hire or reward; but (b) does not include a domestic commercial vessel; prescribed means prescribed by regulations made under this Act; prescribed illicit drug means a drug that is — (a) a prescribed illicit drug as defined in the *Road Traffic Act 1974* section 65; or (b) a drug prescribed for the purposes of this definition; prescribed vessel means a vessel that is prescribed, or in a class of vessel prescribed, for the purposes of this definition, other than a regulated Australian vessel, a foreign vessel, a domestic commercial vessel or a pleasure vessel; regulated Australian vessel has the meaning given in the *Navigation Act 2012* (Commonwealth) section 15; Scheduled Domestic Commercial Vessel National Law means the Marine Safety (Domestic Commercial Vessel) National Law set out in the *Marine Safety (Domestic Commercial Vessel) National Law Act 2012* (Commonwealth) Schedule 1; smooth waters means waters within the geographical limits prescribed for the purposes of this definition; specified, in relation to a direction (whether or not in writing), order, notice, regulation or other instrument or document under this Act, means specified in the direction, order, notice, regulation, instrument or document; 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; territorial sea has the meaning given in the *Seas and Submerged Lands Act 1973* (Commonwealth) section 3(1); vessel, subject to subsection (2) — (a) means, a craft for use, or that is capable of being used, in navigation by water, however propelled or moved; and (b) includes an air‑cushion vehicle, a barge, a personal watercraft, a submersible and a wing‑in‑ground effect craft; vessel information has the meaning given in section 107. WA marine qualification means a qualification, including a licence, issued to a person under this Act that authorises the person to navigate a vessel (as defined in section 75AA(2)). (2) The regulations may specify that a prescribed class of thing is or is not a class of vessel for the purposes of the definition of ***vessel*** in subsection (1). [Section 3 amended: No. 35 of 1990 s. 4 and 21; No. 47 of 1993 s. 33(1); No. 57 of 1997 s. 130(1); No. 7 of 2004 s. 70; No. 55 of 2004 s. 1309; No. 24 of 2023 s. 39(1)‑(7); No. 31 of 2023 s. 4.] ##### 3A. Vessels and crew to which Act applies (1) Except as expressly provided otherwise in this Act, this Act applies to and in relation to the following vessels and their owners, masters, pilots and crew — (a) a vessel in State waters; (b) a vessel connected with the State, wherever it may be, other than a pleasure vessel or prescribed vessel while it is in the waters of another State or a Territory of the Commonwealth. (2) For the purposes of this section, a vessel connected with the State includes a vessel that is — (a) registered, or required to be registered, under this Act; or (b) registered under the *Shipping Registration Act 1981* (Commonwealth), with a home port in the State; or (c) owned by a person who is ordinarily resident in the State; or (d) owned by a person whose place of business, or principal place of business, is in the State; or (e) owned by a person whose principal place of business for managing the vessel’s operations is in the State; or (f) declared by the regulations to be a vessel connected with the State. [Section 3A inserted: No. 24 of 2023 s 40; amended: No 31 of 2023 s. 5.] ##### 3B. Relationship to Domestic Commercial Vessel National Law applied provisions has the meaning given in the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 4(1); Commonwealth domestic commercial vessel national law has the meaning given in the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 4(1); Domestic Commercial Vessel National Law means — (a) the Commonwealth domestic commercial vessel national law; and (b) the applied provisions. (2) The Domestic Commercial Vessel National Law prevails over this Act to the extent of any inconsistency. [Section 3B inserted: No. 24 of 2023 s. 40.] ##### 4. Act not to apply to naval ships etc. 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, including a foreign country. ##### 5. Application to Crown This Act binds the Crown. ## Part 2 — Powers of inspectors ##### 6. Terms used (1) In this Part — evidential material means a thing that is relevant to an offence (within the meaning of subsection (2)) under this Act; judicial officer means a magistrate; occupier, in relation to premises, includes — (a) a person who apparently represents the occupier of the premises; and (b) if the premises are a vessel — the master of the vessel; official details — (a) of a police officer — means the officer’s surname and rank and, if the officer’s official details are required to be stated on a document, the officer’s registered number; and (b) of an inspector — means the inspector’s full name and official title; premises includes — (a) a structure, building, vehicle, vessel or aircraft; and (b) a place (whether or not enclosed or built on); and (c) a part of a thing referred to in paragraph (a) or (b); remote communication means any way of communicating at a distance, including by telephone, email and radio; warrant means a warrant issued under section 26. (2) For the purposes of the definition of ***evidential material***, a thing is relevant to an offence if it is relevant to an offence as described in the *Criminal Investigation Act 2006* section 5. [Section 6 inserted: No. 24 of 2023 s. 42; amended: No. 31 of 2023 s. 6.] ### Division 2 — General powers #### Subdivision 1 — Powers relating to vessels, exercisable without consent or warrant ##### 7. Boarding vessels (1) An inspector may board a vessel, whether or not the vessel is underway, for 1 or both of the following purposes — (a) determining whether this Act is being or has been complied with; (b) exercising any of the powers under this Act that the inspector may exercise in relation to the vessel. (2) The master of a vessel that an inspector proposes to board must take reasonable steps to facilitate the boarding if required by the inspector to do so. (3) An inspector proposing to board a vessel may enter any premises that are not used as a residence to gain access to the vessel. (4) If an inspector who boards a vessel or enters premises under this section fails to produce their identity card, or evidence that they are a police officer (if not in uniform), when requested to do so by the master of the vessel or by the occupier of the premises, the inspector — (a) must leave the vessel or premises; and (b) must not board the vessel or enter the premises again without producing their identity card or evidence that they are a police officer (if not in uniform). [Section 7 inserted: No. 24 of 2023 s. 42.] ##### 8. Requiring master of vessel to answer questions about vessel’s nature or operations (1) An inspector may require the master of a vessel — (a) to answer questions put by the inspector about the nature or operations of the vessel; and (b) to produce for inspection any books, records or other documents about the nature or operations of the vessel requested by the inspector. [Section 8 inserted: No. 24 of 2023 s. 42.] ##### 9. Powers in relation to vessels (1) An inspector may exercise the powers under this section in relation to a vessel for the purposes of determining whether this Act is being or has been complied with. (2) The inspector may, in relation to the vessel, do 1 or more of the following — (a) search the vessel or anything on the vessel; (b) examine or observe any activity conducted on the vessel; (c) inspect, examine, take measurements of or conduct tests on the vessel or anything on or belonging to the vessel; (d) take photographs, video recordings or other recordings of the vessel or anything on the vessel; (e) without limiting section 18, require the production for inspection of any document on the vessel or issued or required to be held under this Act in relation to the vessel; (f) take extracts from, or make copies of, any document produced under paragraph (e); (g) take onto the vessel any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the vessel; (h) require a person on the vessel to demonstrate the operation of machinery or equipment on the vessel; (i) require a person on the vessel to give the inspector 1 or more of the following — (i) the person’s name; (ii) the person’s residential address; (iii) the person’s date of birth; (iv) evidence of the person’s identity; (j) require, by any reasonable means, the master of the vessel to do 1 or more of the following — (i) stop or manoeuvre the vessel; (ii) adopt or maintain a specified course or speed; (iii) take the vessel to a specified place. (3) The inspector may, when on board the vessel, operate electronic equipment on the vessel to determine whether the following contain information that is relevant to the purposes of this section — (a) the equipment; (i) is on the vessel; and (4) If information that is relevant to the purposes of this section is found in the exercise of a power under this section, the inspector may, when on board or leaving the vessel, do 1 or more of the following — (a) operate electronic equipment on the vessel to put the information in documentary form; (b) operate electronic equipment on the vessel to transfer the information to an information storage device that — (i) is brought onto the vessel for that purpose; or (ii) is on the vessel and the use of which for that purpose has been agreed to in writing by the master of the vessel; (c) remove the documents or information storage device from the vessel. (5) The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. (6) A power under subsection (2) may be exercised whether or not the inspector — (a) is on board the vessel; or (b) has reasonable grounds for suspecting that there may be evidential material on the vessel. [Section 9 inserted: No. 24 of 2023 s. 42.] ##### 10. Failing to comply with certain requirements under s. 9 (1) A person who, without reasonable excuse, fails to comply with a requirement under section 9(2)(e), (h), (i) or (j) commits an offence. (2) A person commits an offence if, in response to a requirement made under section 9(2)(i), the person gives a false name, address or date of birth or false evidence of identity. [Section 10 inserted: No. 24 of 2023 s. 42.] ##### 11. Sampling, securing or seizing things found (a) a thing is found during the exercise of a power under section 9 in relation to a vessel; and (b) the inspector believes on reasonable grounds that — (i) the thing is evidential material; and (ii) 1 or more of the powers under this section need to be exercised in order to prevent concealment, loss or destruction of the evidential material; and (iii) the power or powers need to be exercised without a warrant either because of serious and urgent circumstances or because it is not practicable to obtain a warrant. (2) The inspector may do 1 or more of the following — (a) take a sample of the thing and remove the sample from the vessel; (b) secure the thing for up to 72 hours; (c) subject to subsection (3), seize the thing. (3) If the thing is equipment or an information storage device that has been operated or used under section 9(3), the inspector may seize the thing only if — (a) it is not practicable to put all the evidential material the thing contains in documentary form as mentioned in section 9(4)(a) or to transfer all that evidential material as mentioned in section 9(4)(b); or (b) the inspector believes on reasonable grounds that possession of the equipment or the information storage device could constitute an offence against a law of the State. (4) In exercising a power under this section, the inspector must, as far as practicable, minimise damage to any property. [Section 11 inserted: No. 24 of 2023 s. 42.] #### Subdivision 2 — Powers relating to premises, exercisable with consent or under warrant ##### 12. Entering premises (1) An inspector may enter any premises for the purposes of determining whether this Act is being or has been complied with. (2) An inspector may enter any premises if the inspector has reasonable grounds for suspecting that there may be evidential material on the premises. (3) Despite subsections (1) and (2), the inspector cannot enter the premises unless — (a) entry is in accordance with the consent of the occupier of the premises, given under section 24, and, if requested to do so by the occupier, the inspector has produced their identity card or evidence that they are a police officer (if not in uniform); or (b) the entry is made under a warrant. Division 4 includes provisions that deal with consent to entry and matters relating to entry under a warrant. [Section 12 inserted: No. 24 of 2023 s. 42.] ##### 13. Powers of inspectors in relation to premises (1) An inspector may exercise the powers under this section in relation to premises entered under section 12 for the purposes of determining whether this Act is being or has been complied with (whether or not the inspector has reasonable grounds for suspecting that there may be evidential material on the premises). (2) The inspector may, in relation to the premises, do 1 or more of the following — (a) search the premises or anything on the premises; (b) examine or observe any activity conducted on the premises; (c) inspect, examine, take measurements of or conduct tests on anything on the premises; (d) take photographs, video recordings or any other recordings of the premises or anything on the premises; (e) inspect any document on the premises; (f) take extracts from, or make copies of, any document inspected under paragraph (e); (g) take onto the premises any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the premises. (3) The inspector may, when on the premises, operate electronic equipment on the premises to determine whether the following contain information that is relevant to the purposes of this section — (a) the equipment; (i) is on the premises; and (4) If information that is relevant to the purposes of this section is found in the exercise of a power under this section, the inspector may, when on or leaving the premises, do 1 or more of the following — (a) operate electronic equipment on the premises to put the information in documentary form; (b) operate electronic equipment on the premises to transfer the information to an information storage device that — (i) is brought to the premises for that purpose; or (ii) is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises; (c) remove the document or information storage device from the premises. (5) The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. (6) The inspector may secure a thing on the premises for up to 72 hours if — (a) the thing is found during the exercise of a power under this section in relation to the premises; and (b) the inspector believes on reasonable grounds that — (i) the thing is evidential material; and (ii) it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and (iii) it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. [Section 13 inserted: No. 24 of 2023 s. 42.] ##### 14. Enforcement powers (1) An inspector may exercise the powers under this section in relation to premises entered under section 12 if the inspector has reasonable grounds for suspecting that there may be evidential material on premises. (2) The inspector may, in relation to the premises, do 1 or more of the following — (a) if entry to the premises is with the occupier’s consent — search the premises and anything on the premises for evidential material; (b) if entry to the premises is under a warrant — (i) search the premises and anything on the premises for evidential material of the kind specified in the warrant; and (ii) seize evidential material of that kind; (c) inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b) (whichever is relevant); (d) take photographs, video recordings or any other recordings of the premises or evidential material referred to in paragraph (a) or (b) (whichever is relevant); (e) take onto the premises any equipment and materials that the inspector requires for the purpose of exercising powers in relation to the premises; (f) require a person on the premises to demonstrate the operation of machinery or equipment on the premises. (3) The inspector may, when on the premises, operate electronic equipment on the premises to determine whether the following contain evidential material referred to in subsection (2)(a) or (b) (whichever is relevant) — (a) the equipment; or (i) is on the premises; and (4) If evidential material is found in the exercise of a power under this section, the inspector may, when on or leaving the premises, do 1 or more of the following — (a) operate electronic equipment on the premises to put the evidential material in documentary form; (b) operate electronic equipment on the premises to transfer the evidential material to an information storage device that — (i) is brought to the premises for that purpose; or (ii) is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises; (c) remove the document or information storage device from the premises; (d) if entry to the premises is under a warrant and the equipment or information storage device referred to in subsection (3) contains evidential material — seize the equipment or information storage device. (5) The inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. (6) The inspector may seize the equipment or information storage device as mentioned in subsection (4)(d) only if — (a) it is not practicable to put the evidential material in documentary form as mentioned in subsection (4)(a) or to transfer the evidential material to a device as mentioned in subsection (4)(b); or (b) the inspector believes on reasonable grounds that possession of the equipment or information storage device by the occupier could constitute an offence against a law of the State. (7) The inspector may seize a thing if — (a) entry to the premises is under a warrant; and (b) the inspector, in the course of searching for evidential material of the kind specified in the warrant, finds the thing and the inspector believes on reasonable grounds that the thing is evidential material; and (c) the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction. (8) A person who, without reasonable excuse, fails to comply with a requirement under subsection (2)(f) commits an offence. [Section 14 inserted: No. 24 of 2023 s. 42.] ##### 15. Failing to comply with certain requirements of inspectors (1) An inspector who is on premises that the inspector has entered under a warrant may require any person on the premises to — (a) answer any questions put by the inspector; and (b) produce for inspection any books, records or documents requested by the inspector. [Section 15 inserted: No. 24 of 2023 s. 42.] ##### 16. Using force in executing warrant In executing a warrant, an inspector may use any force against persons and things that is necessary and reasonable in the circumstances. [Section 16 inserted: No. 24 of 2023 s. 42.] ##### 17. Relationship with Subdivision 1 (1) This Subdivision does not limit Subdivision 1. (2) Subdivision 1 does not prevent this Subdivision from applying to premises that are vessels. [Section 17 inserted: No. 24 of 2023 s. 42.] #### Subdivision 3 — Requiring certain documents under Act to be produced for inspection ##### 18. Requiring certain documents to be produced for inspection (1) An inspector may, in the exercise of a power under this Act, require a person to produce for inspection any licence, permit, certificate or other document issued to or required to be held by the person under this Act. (3) An inspector may take an extract from, or make a copy of, a document produced under subsection (1). [Section 18 inserted: No. 24 of 2023 s. 42.] #### Subdivision 4 — Obtaining business records [Heading inserted: No. 31 of 2023 s. 7.] ##### 18A. Terms used In this Subdivision — business means any business, including a business of a governmental body or instrumentality or of a local government, or any occupation, trade or calling; business record means a record prepared or used in the ordinary course of a business for the purpose of recording any matter related to the business; order to produce means an order issued under section 18D. [Section 18A inserted: No. 31 of 2023 s. 7.] ##### 18B. Application of this Subdivision (1) An order to produce must not be issued under this Subdivision to a person in relation to a business record that relates or may relate to an offence that the person is suspected of having committed. (2) This Subdivision does not prevent an inspector from applying for a warrant in relation to a business record, whether before or after the issue of an order to produce. [Section 18B inserted: No. 31 of 2023 s. 7.] ##### 18C. Application for order to produce (1) An inspector may apply for an order to produce a business record for the purpose of investigating a suspected contravention of this Act. (2) An application for an order to produce must be made in person to a JP. (3) An application for an order to produce a business record must — (a) state the applicant’s official details; and (b) state the suspected contravention of this Act in relation to which the order is required; and (c) state the grounds on which the applicant suspects that the contravention has occurred; and (d) set out the prescribed information (if any); and (e) state the name of the person to whom the order will apply; and (f) state that the person is not suspected of having committed an offence under this Act to which the business record relates; and (g) describe with reasonable particularity the business record or class of business record that the applicant wants the person to produce; and (h) state the grounds on which the applicant suspects the business record or class of business record is relevant to the investigation; and (i) state whether the original or a copy of the business record or class of business record is required. [Section 18C inserted: No. 31 of 2023 s. 7.] ##### 18D. Issue of order to produce (1) On an application made under section 18C, a JP may issue an order to produce a business record if satisfied, by information on oath and in respect of each of the matters in section 18C(3) that the applicant suspects, that there are reasonable grounds for the applicant to have that suspicion. (2) However, the JP must not issue the order to produce unless the applicant or some other person has given the JP, either orally or by affidavit, any further information that the JP may require concerning the grounds on which the issue of the order to produce is sought. (3) An order to produce must contain the following information — (a) the applicant’s official details; (b) the name of the person to whom the order applies; (c) a reasonably particular description of the business record or class of business record to be produced by the person; (d) an order that the person produce the record or records; (e) whether the original or a copy of the record or records is required; (f) whether a paper, electronic or other version of the record or records is required; (g) the place where the record or records are to be produced; (h) the date on or before which the order must be obeyed, which must allow a reasonable period for the person to obey the order; (i) the name of the JP who issued the order; (j) the date and time when the order was issued. (4) An order to produce must be in the prescribed form. (5) If a JP refuses to issue an order to produce, the JP must record on the application the fact of, the date and time of, and the reasons for, the refusal. [Section 18D inserted: No. 31 of 2023 s. 7.] ##### 18E. Order to produce applied for remotely (1) An inspector may apply, by remote communication, to a JP for an order to produce under section 18C — (a) in an urgent case; or (b) if the inspector believes on reasonable grounds that a JP is not available within a reasonable distance of the inspector. (2) The JP must not issue the order to produce unless satisfied as to the matter in subsection (1)(a) or (b) (whichever is relevant). (3) The *Criminal Investigation Act 2006* section 13(5) to (8) apply in relation to an application under this section. [Section 18E inserted: No. 31 of 2023 s. 7.] ##### 18F. Service of order to produce (1) An order to produce must be served on the person to whom it applies as soon as practicable after it is issued. (2) An order to produce may be served — (a) by personal service or by post; or (b) with the consent of the person to be served, by email or fax or in another agreed way. [Section 18F inserted: No. 31 of 2023 s. 7.] ##### 18G. Effect of order to produce (1) An order to produce has effect according to its contents. (2) A person who is served with an order to produce and who, without reasonable excuse, fails to comply with it commits an offence. [Section 18G inserted: No. 31 of 2023 s. 7.] ##### 18H. Powers in relation to order to produce (1) An inspector to whom a business record is produced under an order to produce may retain it for a reasonable time to determine its evidentiary value. (2) An inspector to whom a business record is produced may, if necessary to preserve the evidentiary value of the document or to subject it to forensic analysis — (a) seize the document; and (b) whether or not the document is seized, inspect, examine, take measurements of or conduct tests on it; and (c) make and retain a copy of it. (3) Section 40(1)(c) does not apply in relation to a thing seized under subsection (2)(a). (4) A person who produces a business record in compliance with an order to produce is not liable to any action or remedy by any person at common law for producing that document. [Section 18H inserted: No. 31 of 2023 s. 7.] ### Division 3 — Directions and improvement notices ##### 19. Power to give directions (1) An inspector may give a person a direction requiring the person to take any action that is reasonable in the circumstances if the inspector believes on reasonable grounds that — (a) the person is contravening, or likely to contravene, a provision of this Act; or (b) it is desirable in the public interest for the inspector to give the person the direction. (2) An inspector may give a person a direction requiring the person to take any action that is reasonable in the circumstances if, in relation to the use of State waters or in relation to a vessel, an inspector believes on reasonable grounds that it is necessary to give the person the direction in order to protect the safety of people or to protect the environment. (3) Without limiting subsection (1) or (2), a direction may require the person given the direction to ensure that — (a) a specified vessel is not operated; or (b) a specified vessel is moved from, or taken to, a specified place; or (c) a specified activity is or is not engaged in; or (d) a specified activity is or is not engaged in, in a specified manner or at a specified place. (4) A person given a direction under subsection (1) or (2) must comply with it. [Section 19 inserted: No. 24 of 2023 s. 42.] ##### 20. Directions under s. 19: procedural details (1) A direction under section 19 must — (a) be given in writing, unless the inspector believes on reasonable grounds that there is an urgent need to protect the safety of people or to protect the environment; and (b) specify the period within which the action must be taken; and (c) include the inspector’s reasons for giving the direction. (2) The direction may include specified steps that the person given the direction must take to satisfy the inspector that the action required to be taken to comply with the direction has been taken. (3) Before the end of the period specified in a direction, an inspector may extend the period in writing and, in that case, the references in sections 19 and 21 to the period specified are references to that period as extended under this subsection. [Section 20 inserted: No. 24 of 2023 s. 42.] ##### 21. Directions under s. 19: inspector may remedy failure to comply (1) If a person given a direction under section 19 does not take the action specified in the direction within the period specified, an inspector may take the action or arrange for it to be taken. (2) The inspector may do all things necessary for the purposes of subsection (1). (3) The chief executive officer may recover the reasonable costs and expenses incurred under subsection (1) from the person given the direction and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction. [Section 21 inserted: No. 24 of 2023 s. 42.] ##### 22. Improvement notices (1) An inspector may give a notice under this section (an improvement notice) to a person if the inspector believes on reasonable grounds that the person — (a) is contravening a provision of this Act; or (b) has contravened a provision of this Act and is likely to contravene that provision again. (2) The inspector must specify in the notice — (a) the provision that the inspector believes is being or is likely to be contravened; and (b) the reasons for that belief; and (c) that the person given the notice must take action to remedy or prevent the contravention; and (d) the period within which the person must comply with the notice. (3) The inspector may specify in the notice any action the person must or must not take during the period specified in the notice. (4) Before the end of the period specified in the notice, an inspector may extend the period in writing. (5) A person given an improvement notice must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control. [Section 22 inserted: No. 24 of 2023 s. 42.] ##### 23. Improvement notices given in relation to vessels (1) A person given an improvement notice under section 22(1) in relation to a vessel must ensure that a copy of the notice is displayed — (a) as directed by the inspector who issued the notice; or (b) if there is no such direction — in a prominent place on or near the vessel. (2) The inspector who gave the notice referred to in subsection (1) must give a copy of the notice to each of the following persons, unless the person has been given the notice under section 22(1) — (a) the owner of the vessel; and (b) the master of the vessel. (3) A failure to comply with subsection (2) does not affect the validity of the notice. (4) A person must not, without reasonable excuse — (a) tamper with a notice displayed under subsection (1); or (b) remove a notice displayed under subsection (1) before the notice has ceased to have effect. [Section 23 inserted: No. 24 of 2023 s. 42.] ### Division 4 — General provisions relating to powers under Part #### Subdivision 1 — General matters concerning entry and exercise of powers ##### 24. Consent to entry (1) For the purposes of section 12(3)(a), a person gives consent to entry to premises by an inspector if the person consents after being informed by the inspector — (a) of the power of entry that the inspector wants to exercise in respect of the premises; and (b) of the reason why the inspector wants to exercise the power; and (c) that the person can refuse to consent to the inspector entering the premises. (2) A consent has no effect unless the consent is voluntary. (3) A consent may be expressed to be limited to entry during a particular period and, if so, the consent has effect for that period unless the consent is withdrawn, or the purposes of the entry are fulfilled, before the end of that period. (4) A consent that is not limited to a period has effect until the consent is withdrawn or the purposes of the entry are fulfilled. (5) If an inspector enters premises under section 12 with the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises as soon as practicable after the consent ceases to have effect. [Section 24 inserted: No. 24 of 2023 s. 42.] ##### 25. Premises with 2 or more occupiers If under this Part any information must be given to, or consent may be obtained from, or any thing must be done in respect of, the occupier of premises, then in a case where there are 2 or more occupiers of the premises, it is sufficient to give the information to, or obtain consent from, or do the thing in respect of, any 1 of the occupiers. [Section 25 inserted: No. 24 of 2023 s. 42.] #### Subdivision 2 — Warrants ##### 26. Warrants (1) An inspector may apply in person to a judicial officer for a warrant in relation to premises. (2) The judicial officer may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises. (3) However, the judicial officer must not issue the warrant unless the inspector or some other person has given to the judicial officer, either orally or by affidavit, any further information that the judicial officer may require concerning the grounds on which the issue of the warrant is sought. (4) The warrant must — (a) describe the premises to which the warrant relates; and (b) state that the warrant is issued under this section; and (c) specify the offence or offences to which the warrant relates; and (d) state the kind of evidential material that may be searched for under the warrant; and (e) state the inspector’s official details; and (f) authorise the inspector to enter the premises for the purposes of this Part; and (g) state that the inspector may exercise powers under this Part in relation to the premises; and (h) state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and (i) specify the day, not more than 1 week after the issue of the warrant, on which the warrant ceases to be in force. (5) A warrant must be in the prescribed form. [Section 26 inserted: No. 24 of 2023 s. 42.] ##### 27. Warrants applied for remotely (1) An inspector may apply, by remote communication, to a judicial officer for a warrant under section 26 — (a) in an urgent case; or (b) if the inspector believes on reasonable grounds that a judicial officer is not available within a reasonable distance of the inspector. (2) The judicial officer must not grant the warrant unless satisfied as to the matter in subsection (1)(a) or (b) (whichever is relevant). (3) The *Criminal Investigation Act 2006* section 13(5) to (8) applies in relation to an application under this section. [Section 27 inserted: No. 24 of 2023 s. 42.] ##### 28. Entry under warrant: rights of occupier (1) An inspector must, before entering premises under a warrant — (a) announce that they are authorised to enter the premises; and (b) give any person at the premises an opportunity to allow entry to the premises. (2) If the occupier is present when it is proposed to enter premises under a warrant, the inspector must, before the entry is made — (a) if they are not a police officer — identify themselves to the occupier by producing their identity card; and (b) if they are a police officer who is not in uniform — identify themselves to the occupier by producing evidence that they are a police officer; and (c) inform the occupier that it is proposed to enter the premises; and (d) make a copy of the warrant available to the occupier; and (e) inform the occupier of their rights and responsibilities under this Subdivision. (3) However, an inspector need not comply with subsections (1) and (2) if the inspector believes on reasonable grounds that immediate entry to the premises is required — (a) to ensure the safety of a person; or (b) to ensure that the effective execution of the warrant is not frustrated. (4) If subsections (1) and (2) are not fully complied with before premises are entered, then as soon as practicable after the premises are entered, they must be complied with to the extent relevant. (5) If premises entered are unoccupied, the inspector must leave the following in a prominent position at the premises before leaving — (a) a notice stating — (i) the inspector’s official details; and (ii) that the premises have been entered; (b) a copy of the warrant completed in accordance with section 32(2). (6) The copy of a warrant given or left under this section must omit the name of the judicial officer who issued it. [Section 28 inserted: No. 24 of 2023 s. 42.] ##### 29. Inspector must be in possession of warrant While a warrant is being executed in relation to premises, the inspector executing the warrant must be in possession of the warrant or a copy of it. [Section 29 inserted: No. 24 of 2023 s. 42.] ##### 30. Occupier entitled to observe execution of warrant (1) The occupier of premises in relation to which a warrant is being executed is, if the occupier is present at the time of its execution, entitled to observe the execution of the warrant. (2) The right to observe the execution of the warrant ceases if the occupier impedes that execution. (3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time. [Section 30 inserted: No. 24 of 2023 s. 42.] ##### 31. Occupier to provide inspector with facilities and assistance (1) The occupier of premises to which a warrant relates must provide an inspector executing the warrant, and any person assisting the inspector, with all reasonable facilities and assistance for the effective exercise of their powers. (2) A person who fails to comply with subsection (1) commits an offence. [Section 31 inserted: No. 24 of 2023 s. 42.] ##### 32. Execution of warrant (1) A warrant may be executed by the inspector to whom it was issued or by another inspector authorised for that purpose by the chief executive officer. (2) On completing the execution of a warrant, the inspector in charge of executing the warrant must record the following matters on it — (a) the inspector’s official details; (b) the date and time when the warrant was executed; (c) any other matter that is prescribed. [Section 32 inserted: No. 24 of 2023 s. 42.] ##### 33. Completing execution of warrant after temporary cessation (1) This section applies if an inspector temporarily ceases executing a warrant and, with all persons assisting the inspector, leaves the premises. (2) The inspector may complete the execution of the warrant if — (a) the warrant is still in force; and (b) 1 of the following applies — (i) the inspector and persons assisting are absent from the premises for not more than 1 hour; (ii) if there is an emergency — the inspector and persons assisting are absent from the premises for not more than 12 hours or any longer period allowed by a judicial officer under subsection (5); (iii) the occupier of the premises consents in writing. (3) An inspector may apply to a judicial officer for an extension of the 12‑hour period mentioned in subsection (2)(b)(ii) if — (a) there is an emergency; and (b) the inspector believes on reasonable grounds that the inspector will not be able to return to the premises within the 12‑hour period. (4) If it is practicable to do so, the inspector must, before making the application, give notice to the occupier of the premises of their intention to apply for an extension. (5) The judicial officer may extend the period during which the inspector and persons assisting may be absent from the premises if — (a) the judicial officer is satisfied, by information on oath, that there are exceptional circumstances that justify the extension; and (b) the extension would not result in the period ending after the warrant ceases to be in force. [Section 33 inserted: No. 24 of 2023 s. 42.] ##### 34. Completing execution of warrant stopped by court order An inspector may complete the execution of a warrant that has been stopped by an order of a court if — (a) the order is later revoked or reversed; and (b) the warrant is still in force when the order is revoked or reversed. [Section 34 inserted: No. 24 of 2023 s. 42.] #### Subdivision 3 — Securing things ##### 35. Electronic equipment may be secured pending expert assistance to operate it (1) This section applies if an inspector believes on reasonable grounds that — (a) on premises to which a warrant relates, there is information (relevant information) relevant to determining whether there is evidential material on the premises; and (b) the relevant information may be accessed by operating electronic equipment on the premises; and (c) expert assistance is required to operate the equipment; and (d) the relevant information may be destroyed, altered or otherwise interfered with if the inspector does not take action under this section. (2) The inspector may do whatever is necessary to secure the equipment for up to 72 hours, whether by locking it up, placing a guard or other means. (3) The inspector must give notice to the occupier of the premises of their intention to secure the equipment and of the fact that the equipment may be secured for up to 72 hours. [Section 35 inserted: No. 24 of 2023 s. 42.] ##### 36. Extending period for which something is secured (1) If an inspector believes on reasonable grounds that a thing needs to be secured under section 11(2)(b), 13(6) or 35(2) for more than 72 hours, the inspector may apply to a judicial officer for an extension of that period. (2) The inspector must give notice to the occupier of the premises on which the thing is secured of the inspector’s intention to apply for an extension, and the occupier is entitled to be heard in relation to that application. (3) The provisions of Subdivision 2 relating to the issue of warrants apply, with necessary modifications, to the granting of an extension. (4) The 72‑hour period may be extended more than once. [Section 36 inserted: No. 24 of 2023 s. 42.] ##### 37. Interfering with securing of things A person commits an offence if — (a) an inspector is securing, or has secured, a thing under section 11(2)(b), 13(6) or 35(2); and (b) the person interferes with the securing of the thing, or the secured thing; and (c) the period for which the thing is secured has not ended. Penalty: a fine of $10 000. [Section 37 inserted: No. 24 of 2023 s. 42.] #### Subdivision 4 — Seizing and detaining things ##### 38. Copies of seized things to be provided (1) This section applies if, under this Part, an inspector seizes 1 or more of the following — (a) a document, film, computer file or other thing that can be readily copied; (b) an information storage device from which information can be readily copied. (2) The following persons may request the inspector to give a copy of the thing or the information to that person — (a) if the inspector seized the thing or information under section 18H(2)(a) — the person who produced the thing or the information to the inspector; (b) otherwise — the occupier of the premises. (3) The inspector must comply with the request as soon as practicable after the seizure. (4) However, the inspector is not required to comply with the request if the inspector believes on reasonable grounds that possession of the thing or information by the person or occupier constitutes an offence against a law of the State or another Australian jurisdiction. [Section 38 inserted: No. 24 of 2023 s. 42; amended: No. 31 of 2023 s. 8.] ##### 39. Receipts for seized things (1) If a thing is seized under this Part, an inspector must provide a receipt for the thing. (2) If 2 or more things are seized, they may be covered in the 1 receipt. [Section 39 inserted: No. 24 of 2023 s. 42.] ##### 40. Return of seized things (1) An inspector must take reasonable steps to return a thing seized under this Part when the earliest of the following happens — (a) the reason for the thing’s seizure no longer exists; (b) it is decided that the thing is not to be used in evidence; (c) the period of 60 days after the thing’s seizure ends. (2) Subsection (1) — (a) is subject to any contrary order of a court; and (b) does not apply if the thing — (i) is forfeited or forfeitable to the State; or (ii) is the subject of a dispute as to ownership. (3) An inspector need not take steps to return a thing because of subsection (1)(c) if — (a) proceedings in respect of which the thing may afford evidence commenced before the end of the period referred to in subsection (1)(c) and have not been completed, including an appeal to a court in relation to those proceedings; or (b) the thing may be retained under an order under section 41; or (c) the State, the chief executive officer or an inspector is otherwise authorised, by a law or an order of a court, to retain, destroy, dispose of or otherwise deal with the thing. (4) A thing that is required to be returned under this section must be returned — (a) to the person from whom it was seized; or (b) if the person from whom it was seized is not entitled to possess the thing — to the owner of the thing. [Section 40 inserted: No. 24 of 2023 s. 42.] ##### 41. Judicial officer may permit seized things to be retained (1) An inspector may apply to a judicial officer for an order permitting the retention of a thing seized under this Part if — (a) proceedings in respect of which the thing may afford evidence have not been commenced; and (b) the application is made before the expiry of — (i) the period referred to in section 40(1)(c); or (ii) a previous order under this section. (2) The judicial officer may order that the thing may be retained for the period specified in the order if satisfied that it is necessary for the thing to be retained — (a) for the purposes of an investigation in respect of an offence under this Act; or (b) to enable evidence of an offence under this Act to be secured for the purposes of a prosecution. (3) The total period for which a thing may be retained must not exceed 3 years. (4) Before making an application under subsection (1), the inspector must — (a) take reasonable steps to discover who has an interest in the thing or the retention of the thing; and (b) if it is practicable to do so, notify each person the inspector believes to have such an interest of the proposed application. [Section 41 inserted: No. 24 of 2023 s. 42.] ##### 42. Forfeiture and disposal of seized things (1) This section applies to a thing seized under this Part if an inspector has taken reasonable steps to return the thing to a person and 1 of the following applies — (a) the inspector has been unable to locate the person, despite making reasonable efforts; (b) the person has refused to take possession of the thing; (c) the inspector has contacted the person about the return of the thing, and the person has not taken possession of the thing within 3 months after being contacted or any longer period agreed to in writing by the inspector. (2) The chief executive officer may declare, by order published in the *Gazette*, that the thing is forfeited to the State. (3) A thing that is the subject of a declaration under subsection (2) is forfeited to the State. (4) The *Criminal and Found Property Disposal Act 2006* applies to the disposal of a thing that is forfeited to the State under this section. The Department is a prescribed agency for the purposes of the *Criminal and Found Property Disposal Act 2006*; see section 124F. [Section 42 inserted: No. 24 of 2023 s. 42.] [**43‑56.** Deleted: No. 24 of 2023 s. 42.] ## Part 3 — Marine powers and duties [Heading inserted: No. 24 of 2023 s. 43.] ##### 57. General powers to stop and search vessels (1) For the purposes of this Act and in addition to any particular powers conferred by or under this Act, an inspector may order a vessel to be stopped and may go on board, inspect and search a vessel and may detain the vessel for so long as is necessary for the purposes of inspection and search. (2) An official of the Department, a person engaged to act on behalf of the Department, an authorised person, an inspector and a surveyor appointed under this Act may — (a) at all reasonable times go on board any vessel to which any of the provisions of this Act extend, for the purpose of examining the hull, boilers and machinery, and making any report thereon required for the purposes of this Act; and (b) inspect any boats, equipment, or materials on board or belonging to any such vessel; and (c) go on board and inspect any such vessel for the purpose of inquiring into or reporting upon the nature and causes of any casualty which the vessel has sustained or caused, or is alleged to have sustained or caused; and (d) require the production of and inspect any licence, permit, certificate or other document issued, or required to be issued, in connection with the ownership, use, or navigation of the vessel; and (e) inspect the vessel and any machinery, equipment, or article — (i) that is required by or under this Act to be carried in or on board the vessel; or (ii) the condition of which could affect the seaworthiness of the vessel. ##### 58. Power to inspect logs and muster crew (1) Where there is reason to suspect that this Act or the regulations are not complied with, an inspector or authorised person may — (a) require the owner, master, or any person on board a commercial vessel to produce any official logbook, ship’s logbook, engineroom logbook and other documents relating to any member of the crew of the vessel, in their respective possession or control; and (b) require the master of a commercial vessel to produce a list of all persons on board his ship; and (c) take copies of such logbooks and documents or of any part thereof; and (d) muster the crew of any such ship; and (e) summon the master to appear and give any explanation concerning such ship or her crew and such logs and documents. (2) A person who — (a) upon requisition made under subsection (1) refuses or neglects to produce or to permit inspection and copying of any logbook or other document; or (b) impedes any mustering of the crew; or (c) refuses or neglects to give any explanation which he is required to give under subsection (1); or (d) knowingly misleads or deceives any person authorised by subsection (1) to require an explanation, is guilty of an offence. Penalty: $1 000. ##### 58A. Compensation in respect of false distress signals The master of a vessel who uses or displays, or causes or permits any person to use or display, any of the signals of distress, except where the vessel is in distress, is liable to pay compensation and costs incidental thereto, recoverable in any court of competent jurisdiction, for any labour undertaken, risk incurred, or loss sustained in consequence of the signal having been regarded as a genuine signal of distress. [Section 58A inserted: No. 35 of 1990 s. 11; amended: No 24 of 2023 s. 45.] ##### 58B. Unsafe pleasure or prescribed vessels not to be operated (1) A person who is the owner or master of a pleasure vessel or prescribed vessel must ensure that the vessel is not operated if it is an unsafe vessel. (2) A person who hires a prescribed vessel must ensure that the vessel is not used if it is an unsafe vessel. (3) Subsection (2) does not apply to a person and a vessel if subsection (1) does. (4) It is a defence in a prosecution for an offence against subsection (1) or (2) to show that — (a) the person charged used all reasonable means to ensure that the vessel was not an unsafe vessel; or (b) the operation of the vessel (where relevant) was, in the circumstances, reasonably justified for the purposes of protecting the vessel from imminent danger. (5) The fact that an unsafe vessel has been detained under section 61 is not a bar to proceedings under this section. (6) Proceedings for an offence against subsection (1) or (2) cannot be brought without the consent of the chief executive officer. [Section 58B inserted: No. 24 of 2023 s. 46.] [**59.** Deleted: No. 31 of 2023 s. 9.] ##### 60. Penalty for unlawfully assuming control Subject to this Act, a person shall not, without the consent of the owner or master of a vessel, navigate or otherwise assume control of the vessel or interfere with the vessel, its equipment, or moorings. Penalty: a fine of $5 000. [Section 60 amended: No. 24 of 2023 s. 48.] ##### 61. Power to detain unsafe pleasure or prescribed vessels (1) The chief executive officer may detain a pleasure vessel or prescribed vessel and bring it, or cause it to be brought, to a port or to another place that the chief executive officer considers appropriate, if the chief executive officer believes on reasonable grounds that the vessel is an unsafe vessel. (2) If a vessel is detained under subsection (1), the chief executive officer must give written notice (the initial notice), within 7 days after the day on which the vessel was detained, to — (a) the master of the vessel; or (b) if the master of the vessel cannot be located — the person who had possession or control of the vessel immediately before it was detained. (3) The notice must — (a) identify the vessel; and (b) state that the vessel has been detained because it is believed to be an unsafe vessel; and (c) specify the grounds for that belief; and (d) provide the contact details of an officer of the Department who can provide further information. (4) The chief executive officer must, within 21 days after the day on which the vessel was detained, do 1 of the following — (a) designate a person under section 63(2) to inspect the vessel and provide a report on it; (b) give a further notice to the person given the initial notice specifying — (i) the conditions that the chief executive officer determines are required to be complied with before the vessel may be released from detention and returned; and (ii) the period (which cannot be less than 3 months) within which those conditions are to be complied with; (c) authorise the vessel to be released from detention and returned. (5) The chief executive officer may enter into a written contract for the provision of services relating to — (a) bringing a vessel detained under this section, or causing it to be brought, to a port or other place under subsection (1); or (b) storing a vessel detained under this section. [Section 61 inserted: No. 24 of 2023 s. 49.] ##### 62. Detained vessels: unauthorised operation (1) A person commits an offence if — (a) the person operates a detained vessel, or causes or permits the operation of a detained vessel; and (b) the vessel has not been released from detention; and (c) the chief executive officer has not authorised the person to operate the vessel. (2) It is a defence in a prosecution for an offence against subsection (1) to show that the operation of the vessel was, in the circumstances, reasonably justified for the purposes of protecting the vessel from imminent danger. [Section 62 inserted: No. 24 of 2023 s. 49.] ##### 63. Detained vessels: inspection designated person means an officer of the Department or another person designated under subsection (2). (2) The chief executive officer may designate an officer of the Department or another person to inspect a detained vessel and provide a report on the vessel to the chief executive officer. (3) The chief executive officer must, within 14 days after the day on which a report is provided under subsection (2), do 1 of the following — (a) give a further notice to the person given the initial notice (under section 61(2)) in relation to the vessel specifying — (i) the conditions that the chief executive officer determines are required to be complied with before the vessel may be released from detention and returned; and (ii) the period (which cannot be less than 3 months) within which those conditions are to be complied with; (b) authorise the vessel to be released from detention and returned. (4) The designated person has, for the purpose of inspecting a detained vessel, the powers of an inspector under sections 7 and 9. (5) For the purposes of subsection (4) — (a) sections 7 and 9 apply as if references in them to an inspector were references to the designated person; and (b) section 7(4) applies as if the reference in that subsection to an inspector failing to produce their identity card were a reference to a designated person failing to produce evidence of their designation under subsection (2); and (c) section 10 applies for the purposes of section 9, as applied by paragraph (a). (6) The designated person may authorise other persons to assist in the exercise of the designated person’s powers under this section. [Section 63 inserted: No. 24 of 2023 s. 49.] ##### 63A. Detained vessels: return (1) The chief executive officer must authorise a detained vessel to be released from detention and returned if satisfied that — (a) the vessel is not an unsafe vessel; or (b) the grounds for the belief that the vessel was an unsafe vessel, specified in the initial notice (under section 61(2)) in relation to the vessel, no longer apply; or (c) the conditions specified in a notice under section 61(4)(b) or 63(3)(a) in relation to the vessel have been complied with. (2) The regulations may make provision for and in relation to the return of detained vessels, including — (a) the steps that must be taken to return a detained vessel; and (b) the person to whom a detained vessel must be returned. [Section 63A inserted: No. 24 of 2023 s. 49.] ##### 63B. Detained vessels: forfeiture and disposal (1) This section applies to a detained vessel if the chief executive officer has taken the steps required by regulations under section 63A(2) to return the vessel to a person and 1 of the following applies — (a) the chief executive officer has been unable to locate the person, despite making reasonable efforts; (b) the person has refused to take possession of the vessel; (c) the chief executive officer has contacted the person about the return of the vessel, and the person has not taken possession of the vessel within 3 months after being contacted or any longer period agreed to in writing by the chief executive officer. (2) This section applies to a detained vessel if the conditions specified in a notice given under section 61(4)(b) or 63(3)(a) in relation to the vessel have not been complied with within the period specified in the notice or any longer period agreed to in writing by the chief executive officer. (3) The chief executive officer may declare, by order published in the *Gazette*, that the vessel is forfeited to the State. (4) A vessel that is the subject of a declaration under subsection (3) is, subject to section 63C, forfeited to the State. (5) The *Criminal and Found Property Disposal Act 2006* applies to the disposal of a vessel that is forfeited to the State under this section. The Department is a prescribed agency for the purposes of the *Criminal and Found Property Disposal Act 2006*; see section 124F. [Section 63B inserted: No. 24 of 2023 s. 49.] ##### 63C. SAT review of decision to detain vessel or forfeiture declaration decision means 1 of the following — (a) a decision under section 61(1) to detain a vessel; (b) a notice under section 61(4)(b) or 63(3)(a) given in relation to a vessel; (c) a declaration under section 63B(3) that a vessel is forfeited to the State. (2) A person aggrieved by a decision may apply to the State Administrative Tribunal for a review of the decision. [Section 63C inserted: No. 24 of 2023 s. 49.] ##### 64. Marine incidents: terms used In this section and sections 64A, 64B and 64D — contact details, of a person, means the name and other prescribed details of the person; identification details, of a vessel, means each of the following, to the extent relevant — (a) the jurisdiction in which the vessel is registered; (b) the name of the vessel; (c) the registration number of the vessel; (d) the contact details of the owner of the vessel (if known); marine incident has the meaning given by the definition of that term in the Scheduled Domestic Commercial Vessel National Law section 6, as if — (a) references in that definition to a domestic commercial vessel were references to a vessel; and (b) paragraph (i) of that definition were omitted. [Section 64 inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 10.] ##### 64A. Marine incidents: duties (1) If a vessel is involved in a marine incident, the master of the vessel must do each of the following, to the extent that they can do so without endangering their vessel, crew or passengers (if any) — (a) stand by to render assistance to persons or other vessels involved in the incident until satisfied that there is no need or no further need to render assistance; (b) render assistance to persons and other vessels involved in the incident; (c) give to any person injured as a result of the incident, and to the master or owner of any other vessel involved in the incident — (i) the master’s contact details; and (ii) the identification details of their vessel. (2) The master of a vessel commits a crime if — (a) the vessel is involved in a marine incident that occasions the death of, or grievous bodily harm or bodily harm to, a person; and (b) the master, without reasonable excuse, fails to comply with subsection (1)(a) or (b) in relation to the incident. (a) if the marine incident occasions the death of a person — imprisonment for 20 years; (b) if the marine incident occasions grievous bodily harm to a person — imprisonment for 14 years; (c) if the marine incident occasions bodily harm to a person — imprisonment for 10 years. Summary conviction penalty for this subsection in a case in which the marine incident does not occasion the death of, or grievous bodily harm to, a person: imprisonment for 3 years. (2A) A court sentencing a person for an offence against subsection (2) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) if the marine incident occasions the death of, or grievous bodily harm to, a person — for a period of not less than 2 years; (b) if the marine incident occasions bodily harm to a person — for a period of not less than 12 months. (3) The master of a vessel commits an offence if the master, without reasonable excuse, fails to comply with subsection (1)(a), (b) or (c). (4) For the purposes of this section, to render assistance to a person or vessel is to assist to the extent that the assistance is practicable and necessary to save the person or vessel from danger resulting from the incident. [Section 64A inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 11.] ##### 64B. Marine incidents: reporting (1) This section applies if a vessel is involved in a marine incident and 1 or more of the following result — (a) a person is injured or dies; (b) the vessel sustains damage affecting its seaworthiness; (c) another vessel is lost or sustains damage affecting its seaworthiness. (2) The master and the owner of the vessel must, as soon as practicable after becoming aware of the incident, give a report (which need not be in writing) to the chief executive officer that includes each of the following — (a) particulars of the incident and its possible cause; (b) the contact details of the master and the owner; (c) the identification details of the vessel; (d) the present position of the vessel (where practicable); (e) details of the marine qualifications of the master. (3) However, if either of the master or owner of the vessel complies with subsection (2), the other need not comply with subsection (2). (3A) A person commits a crime if — (a) the person is the master or owner of a vessel; and (b) the vessel is involved in a marine incident that occasions the death of, or grievous bodily harm or bodily harm to, another person; and (c) the person, without reasonable excuse, fails to comply with subsection (2) in relation to the incident. (a) if the marine incident occasions the death of, or grievous bodily harm to, a person — imprisonment for 10 years; (b) if the marine incident occasions bodily harm to a person — imprisonment for 12 months. Summary conviction penalty for this subsection in a case in which the marine incident occasions the death of, or grievous bodily harm to, a person: imprisonment for 12 months. (3B) A court sentencing a person for an offence against subsection (3A) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 12 months. (3C) A person commits an offence if — (a) the person is the master or owner of a vessel; and (b) the person, without reasonable excuse, fails to comply with subsection (2). (4) The master and owner of the vessel must, within 72 hours after becoming aware of the incident, give a written report to the chief executive officer, in a form and manner approved by the chief executive officer, that — (a) contains all of the details referred to in subsection (2), and any other relevant details required by the form; and (b) confirms any report given under subsection (2). (5) However, if either of the master or owner of the vessel complies with subsection (4), the other need not comply with subsection (4). [Section 64B inserted: No. 24 of 2023 s. 49; amended: No. 31 of 2023 s. 12.] ##### 64C. Marine incidents: preserving evidence (1) This section applies in relation to a vessel if section 64B applies in relation to the vessel. (2) The master of the vessel must take all reasonable steps to ensure the preservation of any material that may be relevant to an investigation of the incident. (3) The owner of the vessel must take all reasonable steps to ensure the preservation of any material that may be relevant to an investigation of the incident. (4) A person on board the vessel must not interfere with any material that may be relevant to an investigation of the incident. [Section 64C inserted: No. 24 of 2023 s. 49.] ##### 64D. Marine incidents: power to require responsible person to give information responsible person, in relation to a vessel, means — (a) the master or owner of the vessel; or (b) another person who appears to be in possession or control of the vessel. (2) This section applies if a vessel is involved in a marine incident. (3) An inspector or police officer may require a responsible person for the vessel to give the inspector or police officer any information that — (a) is in the responsible person’s power to give; and (b) may assist in identifying a person who was the master of the vessel, or operating or attempting to operate the vessel (as defined in section 75AA(1)), when the marine incident occurred. (4) A person who, without reasonable excuse, fails to comply with a requirement under subsection (3) commits an offence. (a) if the marine incident occasions the death of, or grievous bodily harm or bodily harm to, a person — imprisonment for 12 months or a fine of $3 000; (b) otherwise — a fine of $3 000. [Section 64D inserted: No. 31 of 2023 s. 13.] ##### 65. Mooring licences (1) The Minister may grant a licence to any person conferring on that person the right to use, exclusively or in common with another person or other persons, the waters specified in the licence for the purpose of mooring vessels. (2) A licence may be granted under this section upon such terms and subject to such conditions as the Minister thinks fit. ##### 66. Closure of waters (1) Where the chief executive officer is satisfied that for reasons of safety or by reason of an emergency it is expedient that any State waters should be closed to navigation or closed to navigation by vessels of a particular type or class, the chief executive officer may by order close those waters to navigation accordingly and effect shall be given to such an order in accordance with its terms. (2) An order under subsection (1) — (a) may be served on the master of a vessel; and (b) shall be published for general information in such part of the State as is likely to be affected by the order as soon as practicable and in such manner as the chief executive officer considers likely to be appropriate having regard to the circumstances and what may be practicable; and (c) may be varied, renewed or cancelled by subsequent order so made; and (d) has effect and the force of law in relation to the waters therein specified on and from the time of the making of the order, or such other subsequent time as is specified in the order, and may be made so as to apply only to the period specified in the order or without specifying any such period; and (e) may be made so as to be unconditional and so as to apply to any vessel, or so as to provide, whether subject to conditions or unconditionally, that specified persons or vessels may be exempted; and (f) may confer a discretionary authority on any person therein specified. (3) A person who — (a) obstructs any person acting in accordance with a power, authority or discretion conferred under this section; or (b) knowingly navigates a vessel in contravention of an order made and published under this section, is guilty of an offence. (4) The variation or cancellation of an order made under this section does not affect any penalty or punishment incurred, imposed, or liable to be incurred or imposed, prior to that variation or cancellation, or any investigation or legal proceedings in respect of such a penalty or punishment, notwithstanding any other enactment. [(5) deleted] [Section 66 amended: No. 35 of 1990 s. 13 and 21; No. 78 of 1995 s. 137; No. 24 of 2023 s. 50.] ##### 67. Limiting speed of vessels (1) The chief executive officer may by order published in the *Gazette* limit the speed at which vessels may be navigated in any State waters specified in the order. (2) An order published under subsection (1) may — [(a) deleted] (b) apply to vessels generally or to a particular vessel or class of vessels; and (c) be of general application or may apply only in relation to the time, place and circumstances specified in the order; and (d) be varied or cancelled by a further order published in the *Gazette*. (3) A person who causes, permits or suffers a vessel to be navigated contrary to an order published under this section commits an offence. [Section 67 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 51.] ##### 68. Speed measuring equipment (1) The Minister may, by notice published in the *Gazette*, approve of types of apparatus for ascertaining the speed at which a vessel is moving and may, by notice so published, revoke any such approval. (2) In any proceeding for an offence against this or any other Act or regulations made thereunder evidence may be given of the use of speed measuring equipment by an inspector in relation to a vessel and of the speed at which that vessel was moving as ascertained by the use of that equipment, and that evidence is *prima facie* evidence of the speed at which that vessel was moving at the time of the use of that equipment in relation to that vessel. (3) In any proceeding of the kind mentioned in subsection (2), evidence by an inspector that apparatus used by him was speed measuring equipment within the meaning of this section is *prima facie* evidence of that fact. (4) Nothing in this section shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act or regulations made thereunder. (5) In this section — speed measuring equipment means apparatus of a type approved by the Minister under subsection (1). ##### 69. Offences relating to hatches The master of a pleasure vessel or a prescribed vessel that departs from or arrives at any port in the State with the hatches of the vessel not properly battened down and secured, or not in a position and condition that they can be battened down and secured without delay, is guilty of an offence. Penalty: a fine of $2 000. [Section 69 inserted: No. 24 of 2023 s. 52.] ##### 70. Offence of being on board vessel unlawfully (1) A person (other than an inspector or authorised person) must not, without reasonable excuse or the permission of the master of a vessel, board or remain alongside the vessel in any port during the night. Penalty for this subsection: a fine of $500. (2) The master or a police officer may apprehend and detain any person found to be offending against subsection (1) and a person so detained must be brought before a court as soon as practicable. [Section 70 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 53.] [**71**-**75**. Deleted: No. 24 of 2023 s. 54.] ## Part 3A — Safe navigation of vessels, and alcohol and drug related offences ##### 75A. Terms used In this Part — 0.08+ and illicit drug offence means an offence against section 75DD(1); 0.08+ offence means an offence against section 75DA(1); circumstances of aggravation has the meaning given in section 75AF; involved, for a vessel in relation to an incident, has the meaning given in section 75AB; operate, a vessel, has the meaning given in section 75AA(1). [Section 75A inserted: No. 31 of 2023 s. 14(1).] ##### 75AA. When individual operates or navigates vessel (1) An individual operates a vessel if the individual — (a) determines or exercises control over the course or direction of the vessel, or the means of propulsion of the vessel, whether or not the vessel is underway or being towed by another vessel; or (b) pilots the vessel. (2) An individual navigates a vessel if the individual — (a) operates the vessel; or (b) is in command or charge of the vessel while the individual, or another individual or other individuals, operate or attempt to operate the vessel. [Section 75AA inserted: No. 31 of 2023 s. 14(1).] ##### 75AB. When vessel is involved in incident A vessel is involved in an incident if — (a) the presence of the vessel occasioned the incident; or (b) the use of the vessel is an immediate or proximate cause of the death of, or injury to, a person or damage to property occasioned by the incident. [Section 75AB inserted: No. 31 of 2023 s. 14(1).] ##### 75AC. Person taken to be in command or charge of vessel for purposes of Parts 3A and 3B (1) This section applies for the purposes of Parts 3A and 3B and in the absence of proof to the contrary. (2) A person is taken to be in command or charge of a vessel at a particular time if, at that time — (a) the person is the only person, or the only person who is 18 years of age or above, on the vessel; or (b) the person appears, without contradiction by any other person on the vessel, to be in command or charge of the vessel; or (c) the other persons on the vessel, or a majority of them, acknowledge that the person is in charge of the vessel; or (d) of all the persons on the vessel, the person has ultimate control over the course or direction of the vessel, or the means of propulsion of the vessel, whether or not — (i) the vessel is underway; or (ii) the person is operating the vessel. For the purposes of paragraph (b), the person says or does something that makes them appear to be in command or charge of the vessel. (3) A person who owns a vessel is taken to be in command or charge of the vessel if the person — (a) is on the vessel; and (b) holds a marine qualification that authorises the person to navigate the vessel. (4) A person who has command or charge of a vessel continues to have command or charge of the vessel until the person has ensured that — (a) the command or charge of the vessel has been handed to another person; and (b) the other person has accepted the command or charge. [Section 75AC inserted: No. 31 of 2023 s. 14(1).] ##### 75AD. Person is incapable of having proper control of vessel For the purposes of this Part, a reference to a person being incapable of having proper control of a vessel includes — (a) a reference to the person being incapable of having proper control over — (i) the course or direction of the vessel; or (ii) the means of propulsion of the vessel; and (b) a reference to the person who is the pilot of the vessel being incapable of having proper conduct of the vessel; and (c) a reference to the person who is the master of a vessel being incapable of having proper command or charge of the vessel. [Section 75AD inserted: No. 31 of 2023 s. 14(1).] ##### 75AE. Person with BAC of 0.15 or above taken to be incapable of proper control (1) This section applies in a proceeding for an offence if it is alleged that, at the time of the alleged offence, the person charged was under the influence of alcohol to such an extent as to be incapable of having proper control of a vessel. (2) The person is taken to have been under the influence of alcohol to that extent at the time of the alleged offence if the person had a BAC of 0.15 g or above at that time. [Section 75AE inserted: No. 31 of 2023 s. 14(1).] ##### 75AF. Circumstances of aggravation (1) For the purposes of this Part, a person commits an offence, or navigates a vessel, in circumstances of aggravation if at the time of the alleged offence or navigation — (a) the person was unlawfully navigating the vessel without the consent of an owner or the master of the vessel; or (b) if a speed limit applied to the vessel or the waters in which it was operating — the person was navigating the vessel at a speed that exceeded the speed limit by 10 knots or more; or (c) the person was navigating the vessel to escape pursuit by an inspector or police officer. (2) Subsection (1)(c) applies whether the pursuit was proceeding, or had been suspended or terminated, at the time of the alleged offence. [Section 75AF inserted: No. 31 of 2023 s. 14(1).] ### Division 2 — Safe navigation of vessels and alcohol and drug related offences #### Subdivision 1 — Dangerous navigation of vessels occasioning death, grievous bodily harm or bodily harm ##### 75B. Dangerous navigation of vessel occasioning death (a) a vessel navigated by the person is involved in an incident occasioning the death of another person; and (b) at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel. Alternative offence for this subsection: subsection (2) or an offence specified in the Table. Penalty for this subsection: imprisonment for 20 years and a fine of any amount. (2) A person commits a crime if — (a) a vessel navigated by the person is involved in an incident occasioning the death of another person; and (b) at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case. (a) if the offence is committed in circumstances of aggravation — imprisonment for 20 years and a fine of any amount; (b) otherwise — imprisonment for 10 years and a fine of any amount. (3) A court sentencing a person for an offence against subsection (1) or (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 2 years. [Section 75B inserted: No. 31 of 2023 s. 14(1).] ##### 75BA. Dangerous navigation of vessel occasioning grievous bodily harm (a) a vessel navigated by the person is involved in an incident occasioning grievous bodily harm to another person; and (b) at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel. Alternative offence for this subsection: subsection (2) or an offence specified in the Table. Penalty for this subsection: imprisonment for 14 years and a fine of any amount. (2) A person commits a crime if — (a) a vessel navigated by the person is involved in an incident occasioning grievous bodily harm to another person; and (b) at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case. (a) if the offence is committed in circumstances of aggravation — imprisonment for 14 years and a fine of any amount; (b) otherwise — imprisonment for 7 years or a fine of any amount. (3) A court sentencing a person for an offence against subsection (1) or (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 2 years. [Section 75BA inserted: No. 31 of 2023 s. 14(1).] ##### 75BB. Dangerous navigation of vessel occasioning bodily harm (a) a vessel navigated by the person is involved in an incident occasioning bodily harm to another person; and (b) at the time of the incident, the person was navigating the vessel while under the influence of alcohol, a drug, or alcohol and a drug to such an extent as to be incapable of having proper control of the vessel. Alternative offence for this subsection: subsection (3) or an offence specified in the Table. Penalty for this subsection: imprisonment for 10 years and a fine of any amount. (2) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) if the person is convicted on indictment — for a period of not less than 2 years; (b) if the person is convicted summarily — for a period of not less than 18 months. (3) A person commits a crime if — (a) a vessel navigated by the person is involved in an incident occasioning bodily harm to another person; and (b) at the time of the incident, the person was navigating the vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case. (a) if the offence is committed in circumstances of aggravation — (i) if the person is convicted on indictment — imprisonment for 10 years or a fine of any amount; (ii) if the person is convicted summarily — imprisonment for 3 years or a fine of $36 000; (i) for a first offence, imprisonment for 9 months or a fine of $9 000; (ii) for a second or subsequent offence, imprisonment for 18 months or a fine of $18 000. (4) A court sentencing a person for an offence against subsection (3) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) if the offence is committed in circumstances of aggravation — a period of not less than 2 years; (b) otherwise — a period of not less than 12 months. [Section 75BB inserted: No. 31 of 2023 s. 14(1).] ##### 75BC. Careless navigation of vessel occasioning death, grievous bodily harm or bodily harm (1) A person commits an offence if — (a) a vessel navigated by the person is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, another person; and (b) at the time of the incident, the person was navigating the vessel without due care and attention. Alternative offence for this subsection: section 75BF (Careless navigation of vessel). Penalty for this subsection: imprisonment for 3 years or a fine of $36 000. (2) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 3 months. [Section 75BC inserted: No. 31 of 2023 s. 14(1).] #### Subdivision 2 — Reckless, dangerous and careless navigation of vessels ##### 75BD. Reckless navigation of vessel (1) A person commits an offence if the person wilfully navigates a vessel in a manner that is — (a) inherently dangerous; or (b) dangerous to the public or to any person, having regard to all the circumstances of the case. (a) for a first offence, a fine of $6 000; (b) for a second offence, a fine of $9 000; (c) for a third or subsequent offence, a fine of $12 000. (2) If an offence against subsection (1) is committed in the circumstance of aggravation referred to in section 75AF(1)(c), the offence is a crime. Table — Alternative offence Penalty for this subsection: imprisonment for 5 years. Summary conviction penalty for this subsection: imprisonment for 2 years. (3) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) for an offence committed in a circumstance of aggravation — (i) for a first or second offence, for a period of not less than 2 years; or (ii) for a third or subsequent offence, permanently; (i) for a first offence, for a period of not less than 6 months; or (ii) for a second offence, for a period of not less than 12 months; or (iii) for a third or subsequent offence, permanently. [Section 75BD inserted: No. 31 of 2023 s. 14(1).] ##### 75BE. Dangerous navigation of vessel (1) A person commits an offence if the person navigates a vessel in a manner that is dangerous to the public or to any person, having regard to all the circumstances of the case. Alternative offence for this subsection: section 75BF (Careless navigation of vessel). (a) for an offence committed in the circumstance of aggravation referred to in section 75AF(1)(c) — imprisonment for 3 years or a fine of $36 000; (i) for a first offence, a fine of $3 000; (ii) for a second or subsequent offence, a fine of $6 000. (2) A court sentencing a person for an offence against subsection (1) must order that the offender is disqualified from holding or obtaining a WA marine qualification as follows — (a) for an offence committed in the circumstance of aggravation referred to in section 75AF(1)(c) — for a period of not less than 2 years; (b) if paragraph (a) does not apply and the offence is a second or subsequent offence — for a period of not less than 12 months. (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were a previous offence against subsection (1). | s. 75B(1) or (2) | Dangerous navigation of vessel occasioning death | [Section 75BE inserted: No. 31 of 2023 s. 14(1).] ##### 75BF. Careless navigation of vessel A person commits an offence if the person navigates a vessel without due care and attention. Penalty: a fine of $1 500. [Section 75BF inserted: No. 31 of 2023 s. 14(1).] #### Subdivision 3 — Provisions relating to offences in Subdivisions 1 and 2 ##### 75BG. Application of Subdivision This Subdivision applies for the purposes of an offence against a provision of Subdivision 1 or 2. [Section 75BG inserted: No. 31 of 2023 s. 14(1).] ##### 75BH. Circumstances occasioning death, grievous bodily harm or bodily harm The circumstances in which a vessel is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include circumstances in which the death or harm is occasioned through any of the following — (a) the vessel overturning or running aground while the person is in or on the vessel (whether as a passenger or otherwise); (b) the person falling from the vessel, or being thrown or ejected from the vessel, while in or on the vessel (whether as a passenger or otherwise); (c) an impact between any object or thing and the vessel while the person is in or on the vessel (whether as a passenger or otherwise); (d) an impact between the person and the vessel; (e) an impact between the vessel and another vessel, or an object or thing, while the person is on or near the other vessel, object or thing; (f) an impact between the person and any object on or attached to the vessel; (g) an impact between the person and any object that is in motion having fallen from the vessel; (h) an impact between any object or thing and the person while the person is in or on the vessel (whether as a passenger or otherwise); (i) the vessel causing an impact between other vessels or between another vessel and any object, thing or person; (j) the vessel causing another vessel to overturn or run aground; (k) the vessel causing a person (whether as a passenger or otherwise) in or on another vessel to fall from that other vessel. [Section 75BH inserted: No. 31 of 2023 s. 14(1).] ##### 75BI. Provisions for offences involving incidents occasioning death, grievous bodily harm or bodily harm (1) This section applies for the purposes of an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person (the casualty). (2) It is immaterial that the death, grievous bodily harm or bodily harm — (a) might have been avoided by proper precaution on the part of a person other than the person charged; or (b) might have been prevented if the casualty received proper care or treatment. (3) The incident is taken to have caused the death of the casualty if — (a) the incident occasions grievous bodily harm to the casualty; and (b) the casualty receives surgical or medical treatment for the harm; and (c) the death results from the harm or the treatment. (4) Subsection (3) applies even though the immediate cause of the casualty’s death was the surgical or medical treatment, if the treatment was reasonably proper in the circumstances and provided in good faith. [Section 75BI inserted: No. 31 of 2023 s. 14(1).] ##### 75BJ. Defence: death or harm not attributable to alcohol or drugs (1) This section applies if it is alleged that an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person occurred while the person charged was under the influence of alcohol, a drug, or alcohol and a drug. (2) It is a defence to a charge of the offence for the person charged to prove that the death, grievous bodily harm or bodily harm was not attributable to the fact that the person charged was under the influence of alcohol, the drug, or alcohol and the drug. [Section 75BJ inserted: No. 31 of 2023 s. 14(1).] ##### 75BK. Defence: death or harm not attributable to manner of operation or level of care and attention (1) This section applies if it is alleged that an offence involving an incident that occasioned the death of, or grievous bodily harm or bodily harm to, a person occurred while the person charged was navigating the vessel. (2) It is a defence to a charge of the offence for the person charged to prove that the death, grievous bodily harm or bodily harm was not attributable to — (a) the manner in which the person navigated the vessel; or (b) the person’s level of care or attention when navigating the vessel. [Section 75BK inserted: No. 31 of 2023 s. 14(1).] ##### 75BL. Defence: inspector or police officer navigating vessel in certain circumstances (1) This section applies if it is alleged that the person charged with an offence navigated a vessel in a manner that was — (a) inherently dangerous; or (b) dangerous to the public or to any person. (2) It is a defence to a charge of the offence for the person charged to prove that, at the time of the alleged offence — (a) the person was on official duty as an inspector or police officer; and (b) the person navigated the vessel substantially in accordance with — (i) the chief executive officer’s or Commissioner of Police’s policies and guidelines relating to navigating vessels; and (ii) a direction given under any of those policies or guidelines; and (c) it was reasonable and in the public interest for the person charged to navigate the vessel in that manner, having regard to all of the circumstances of the case. [Section 75BL inserted: No. 31 of 2023 s. 14(1).] ### Division 3 — Navigation of vessels while under the influence of alcohol or drugs or impaired by drugs ##### 75C. Navigation of vessel while under influence of alcohol or drugs (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vessel. (i) if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $3 750; (ii) if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $2 750 or more than $3 750; (iii) if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $2 750 or more than $3 750; (iv) in any other case — a fine of not less than $2 050 or more than $3 750; (2) If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | (e) 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence | 42 months | | (f) any other case | 10 months | | Second offence | 30 months | | Subsequent offence | Permanent | (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (5) The charging of a person for an offence against this section does not limit the operation of sections 75EE, 75EF, 75EH, 75EN and 75EO. [Section 75C inserted: No. 31 of 2023 s. 14(1).] ##### 75CA. Navigation of vessel while under influence of both alcohol and drugs (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while under the influence of alcohol and a drug to such an extent as to be incapable of having proper control of the vessel. (i) if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $5 650; (ii) if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (iii) if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (c) for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $4 750 or more than $11 250. (2) If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | (e) 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence | 42 months | | Subsequent offence | Permanent | (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (5) The charging of a person for an offence against this section does not limit the operation of sections 75EE, 75EF, 75EH, 75EN and 75EO. [Section 75CA inserted: No. 31 of 2023 s. 14(1).] ##### 75CB. Defence: under influence of drug prescribed or administered for therapeutic reasons (1) This section applies in relation to an offence against section 75C(1) or 75CA(1) if it is alleged, or it appears on the evidence, that the person charged was under the influence of a particular drug. (2) It is a defence to a charge of the offence for the person charged to prove that — (a) the particular drug was prescribed for, or administered to, the person by a medical practitioner, nurse practitioner or dentist for therapeutic reasons; and (b) the person was not aware, and could not reasonably have been expected to be aware, that the particular drug was likely to affect the person in a way that would be inconsistent with the person being capable of having proper control of a vessel. [Section 75CB inserted: No. 31 of 2023 s. 14(1).] ##### 75CC. Master must not permit person under influence of alcohol or drugs or both to operate vessel The master of a vessel commits an offence if the master — (a) is aware or has reason to suspect that another person is under the influence of alcohol, a drug or alcohol and a drug; and (b) permits the other person to operate the vessel. Penalty: a fine of $3 750. [Section 75CC inserted: No. 31 of 2023 s. 14(1).] ##### 75CD. Navigation of vessel while impaired by drugs (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while the person is impaired by a drug. (a) for a first offence, a fine of not less than $1 700 or more than $3 750; (2) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) for a first offence, for a period of not less than 10 months; (b) for a second offence, for a period of not less than 30 months; (c) for a third or subsequent offence, permanently. (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | | s. 75HC(1) | Failure to comply with requirement: incident occasioning death, greivous bodily harm or bodily harm | [Section 75CD inserted: No. 31 of 2023 s. 14(1).] ##### 75CE. When person may be convicted of navigation of vessel while impaired by drugs offence A person may be convicted of an offence against section 75CD(1) if the prosecutor proves that — (a) the person navigated, or attempted to operate, a vessel; and (b) at the time of the navigation or attempted operation of the vessel, 1 or more drugs were present in the person’s body; and (c) the person’s behaviour, condition or appearance was consistent with the behaviour, condition or appearance associated with a person who has consumed or used that drug or combination of drugs; and (d) the behaviour or condition associated with a person who has consumed or used that drug or combination of drugs would be inconsistent with the person being capable of having proper control of a vessel. [Section 75CE inserted: No. 31 of 2023 s. 14(1).] ##### 75CF. Defence: impaired by drug prescribed or administered for therapeutic reasons (1) This section applies in relation to an offence against section 75CD(1) if it is alleged, or it appears on the evidence, that the person charged was impaired by 1 or more drugs. (2) It is a defence to a charge of the offence for the person charged to prove that — (a) the drug, or each drug, was prescribed for, or administered to, the person charged by a medical practitioner, nurse practitioner or dentist for therapeutic reasons; and (b) if the person charged received the drug, or 1 of the drugs, in packaged form — the packaging did not include a label advising that the drug was likely to affect a person in a way that would be inconsistent with the person being capable of having proper control of a vessel; and (c) the person charged was not aware, and could not reasonably have been expected to be aware, that the drug or combination of drugs were likely to affect the person in a way that would be inconsistent with the person being capable of having proper control of a vessel. (3) This section has effect despite section 75CE. [Section 75CF inserted: No. 31 of 2023 s. 14(1).] ##### 75CG. Rights of person charged with particular offences (a) a person is charged with an offence against section 75C(1), 75CA(1) or 75CD(1); and (b) a sample of the person’s blood was not taken under an alcohol or drug testing requirement before the person was charged. (2) The person has the right to be examined by a medical practitioner nominated by them, if one is available, for the purpose of arranging for a sample of the person’s blood to be taken. (3) An inspector or police officer must — (a) inform the person charged of this right; and (b) make every reasonable effort to afford the person charged this right. [Section 75CG inserted: No. 31 of 2023 s. 14(1).] ### Division 4 — Navigation of vessels with particular BAC or prescribed illicit drug present [Heading inserted: No. 31 of 2023 s. 14(2).] ##### 75D. Navigation of vessel while BAC is 0.05 or above (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while the person’s BAC is 0.05 g or above. (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | ≥ 0.05 g but < 0.07 g | Min:<br>Max:<br>Disq: | $1 250 | $1 250<br>$2 000<br>6 months | $1 250<br>$2 000<br>8 months | | ≥ 0.07 g | Min:<br>Max:<br>Disq: | $1 250 | $1 500<br>$2 000<br>8 months | $1 500<br>$2 000<br>10 months | (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the previous offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were a previous offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75D inserted: No. 31 of 2023 s. 14(2).] ##### 75DA. Navigation of vessel while BAC is 0.08 or above (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while the person’s BAC is 0.08 g or above. Alternative offence for this subsection: 75D(1) (Navigation of vessel while BAC is 0.05 or above). (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | ≥ 0.08 g but < 0.09 g | Min:<br>Max:<br>Disq: | $750<br>$2 250<br>6 months | $1 600<br>$2 250<br>8 months | $1 600<br>$2 250<br>10 months | | ≥ 0.09 g but < 0.11 g | Min:<br>Max:<br>Disq: | $850<br>$2 250<br>7 months | $1 700<br>$2 250<br>10 months | $1 700<br>$2 250<br>13 months | | ≥ 0.11 g but < 0.13 g | Min:<br>Max:<br>Disq: | $1 000<br>$2 250<br>8 months | $1 800<br>$3 000<br>14 months | $1 800<br>$3 000<br>17 months | | ≥ 0.13 g | Min:<br>Max:<br>Disq: | $1 150<br>$2 250<br>9 months | $2 400<br>$3 750<br>18 months | $2 400<br>$4 500<br>30 months | (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the previous offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75DA inserted: No. 31 of 2023 s. 14(2).] ##### 75DB. Navigation of vessel while prescribed illicit drug present (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while a prescribed illicit drug is present in the person’s body. (a) for a first offence, a fine of $1 250; (b) for a second or subsequent offence, a fine of not less than $1 250 or more than $2 000. (2) A court sentencing a person for a second or subsequent offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 6 months. (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). [Section 75DB inserted: No. 31 of 2023 s. 14(2).] ##### 75DC. Navigation of vessel while BAC is 0.05 or above and prescribed illicit drug present (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while — (a) the person’s BAC is 0.05 g or above; and (b) a prescribed illicit drug is present in the person’s body. (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | ≥ 0.05 g but < 0.07 g | Min: Max: Disq: | $1 900 3 months | $1 900 $3 000 9 months | $1 900 $3 000 12 months | | ≥ 0.07 g | Min: Max: Disq: | $1 900 3 months | $2 250 $3 000 12 months | $2 250 $3 000 15 months | (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the previous offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75DC inserted: No. 31 of 2023 s. 14(2).] ##### 75DD. Navigation of vessel while BAC is 0.08 or above and prescribed illicit drug present (1) A person commits an offence if the person navigates, or attempts to operate, a vessel while — (a) the person’s BAC is 0.08 g or above; and (b) a prescribed illicit drug is present in the person’s body. (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | ≥ 0.08 g but < 0.09 g | Min: Max: Disq: | $1 150 $3 400 9 months | $2 400 $3 400 12 months | $2 400 $3 400 15 months | | ≥ 0.09 g but < 0.11 g | Min: Max: Disq: | $1 300 $3 400 11 months | $2 550 $3 400 15 months | $2 550 $3 400 20 months | | ≥ 0.11 g but < 0.13 g | Min: Max: Disq: | $1 500 $3 400 12 months | $2 700 $4 500 21 months | $2 700 $4 500 26 months | | ≥ 0.13 g | Min: Max: Disq: | $1 750 $3 400 14 months | $3 600 $5 650 27 months | $3 600 $6 750 42 months | (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the previous offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75DD inserted: No. 31 of 2023 s. 14(2).] ##### 75DE. Mistaken belief about prescribed illicit drug is not defence It is not a defence to a charge of an offence against section 75DB(1), 75DC(1) or 75DD(1) that the person charged took a prescribed illicit drug mistakenly believing it to be another drug if that other drug is also — (a) a drug to which the *Misuse of Drugs Act 1981* applies; or (b) a Schedule 4 poison as defined in the *Medicines and Poisons Act 2014* section 3. [Section 75DE inserted: No. 31 of 2023 s. 14(2).] ## Part 3B — Testing for alcohol and drugs ##### 75E. Terms used (1) In this Part — authorised drug tester has the meaning given in section 75EB(1); authorised operator has the meaning given in section 75EA(1); breath analysing equipment means — (a) breath analysing equipment as defined in the *Road Traffic Act 1974* section 65; or (b) a device of a type approved under section 75JA(b); breath analysis means the analysis of a sample of a person’s breath to determine the person’s BAC using breath analysing equipment; drug testing means testing a sample of a person’s oral fluid for the presence of a prescribed illicit drug using a drug testing device; drug testing device means — (a) an approved device as defined in the *Road Traffic Act 1974* section 65; or (b) a device of a type approved under section 75JA(d); hospital has the meaning given in the *Health Services Act 2016* section 8(4); involved, for a vessel in relation to an incident, has the meaning given in section 75AB; operate, a vessel, has the meaning given in section 75AA(1); preliminary breath test means — (a) a preliminary test as defined in the *Road Traffic Act 1974* section 65; or (b) a test of a sample of a person’s breath using a preliminary breath testing device; preliminary breath testing device means — (a) an apparatus of a type referred to in the definition of ***preliminary test*** in the *Road Traffic Act 1974* section 65; or (b) a device of a type approved under section 75JA(a); preliminary oral fluid test means a test of a sample of a person’s oral fluid using a preliminary oral fluid testing device; preliminary oral fluid testing device means — (a) a device of a type referred to in the definition of ***preliminary oral fluid test*** as that term is defined in the *Road Traffic Act 1974* section 65; or (b) a device of a type approved under section 75JA(c); prescribed sample taker means — (a) a medical practitioner; or (b) a registered nurse; or (c) a prescribed person who is appropriately qualified to take samples for testing in relation to alcohol or drugs; registered nurse means a person — (a) registered under the *Health Practitioner Regulation National Law (Western Australia)* in the nursing profession; and (b) whose name is entered on Division 1 of the Register of Nurses kept under that Law; stop, in relation to a vessel, includes — (a) stop the vessel’s motor; and (b) drop the vessel’s anchor; and (c) fasten the vessel to a mooring, wharf or jetty. (2) For the purposes of this Part, anything done by a person acting under the supervision or direction of an analyst, a drugs analyst, a medical practitioner or a prescribed sample taker is taken to have been done by the analyst, drugs analyst, medical practitioner or prescribed sample taker (as the case requires). [Section 75E inserted: No. 31 of 2023 s. 15.] ##### 75EA. Authorised operators for operating breath analysing equipment (1) An authorised operator is — (a) an authorised person as defined in the *Road Traffic Act 1974* section 65; or (b) a police officer certified by the Commissioner of Police under subsection (2); or (c) an inspector certified by the chief executive officer under subsection (3). (2) The Commissioner of Police may certify that a police officer is competent to operate breath analysing equipment. (3) The chief executive officer may certify that an inspector is competent to operate breath analysing equipment. [Section 75EA inserted: No. 31 of 2023 s. 15.] ##### 75EB. Authorised drug testers for operating drug testing devices (1) An authorised drug tester is — (a) an authorised drug tester as defined in the *Road Traffic Act 1974* section 65; or (b) a police officer certified by the Commissioner of Police under subsection (2); or (c) an inspector certified by the chief executive officer under subsection (3). (2) The Commissioner of Police may certify that a police officer is competent to operate a drug testing device. (3) The chief executive officer may certify that an inspector is competent to operate a device. [Section 75EB inserted: No. 31 of 2023 s. 15.] ##### 75EC. Using breath sample to work out BAC (1) A concentration of alcohol in a person’s breath of a number of grams per 210 L of breath is taken to be a concentration in the person’s blood of that number of grams of alcohol per 100 mL of blood. (2) Breath analysing equipment is taken to be a device that determines a person’s BAC by analysing a sample of the person’s breath, whether the device — (a) gives the BAC directly; or (b) allows the BAC to be worked out under subsection (1). (3) A device used to conduct a preliminary breath test is taken to be a device that indicates a person’s BAC, or indicates whether or not the person has a BAC of or above a particular level, whether the device — (a) gives the indication directly; or (b) allows the BAC to be worked out under subsection (1). [Section 75EC inserted: No. 31 of 2023 s. 15.] ##### 75ED. Powers additional to other powers A power of an inspector or police officer under this Part is additional to, and does not limit, any other power the inspector or police officer may have under this Act or another written law. [Section 75ED inserted: No. 31 of 2023 s. 15.] ### Division 2 — Testing for alcohol #### Subdivision 1 — Preliminary breath tests ##### 75EE. General power to require breath sample for preliminary breath test (1) An inspector or police officer may require a person to provide a sample of breath for a preliminary breath test if the inspector or police officer believes on reasonable grounds that the person is or was — (a) navigating, or attempting to operate, a vessel; or (b) the master of a vessel. (2) The inspector or police officer must conduct a preliminary breath test of the person. [Section 75EE inserted: No. 31 of 2023 s. 15.] ##### 75EF. Power to require breath sample for preliminary breath test following incident (1) This section applies if a vessel is involved in an incident occasioning injury to a person or damage to property and an inspector or police officer — (a) does not know, or has doubt about, who was navigating the vessel at the time of the incident; and (b) believes on reasonable grounds that the person may have been navigating the vessel at that time. (2) The inspector or police officer may require the person to provide a sample of breath for a preliminary breath test. (3) The inspector or police officer must conduct a preliminary breath test of the person. [Section 75EF inserted: No. 31 of 2023 s. 15.] ##### 75EG. Compliance with requirement A person must comply with a requirement imposed on the person under section 75EE or 75EF by providing a sample of the person’s breath in accordance with the directions of the inspector or police officer. [Section 75EG inserted: No. 31 of 2023 s. 15.] #### Subdivision 2 — Breath analysis or blood samples following preliminary breath test or commission of certain offences ##### 75EH. Power to require breath or blood sample following requirement for preliminary breath test (a) an inspector or police officer requires a person to provide a sample of breath for a preliminary breath test under section 75EE or 75EF; and (b) either — (i) the person’s preliminary breath test indicates they have a BAC of 0.05 g or above; or (ii) the person fails to comply with the requirement. (2) This section also applies if — (a) an inspector or police officer has power to require a person to provide a sample of breath for a preliminary breath test under section 75EE or 75EF; and (b) it appears to the inspector or police officer that the person may be incapable of complying with the requirement because of the person’s physical condition. (3) An inspector or police officer may require a person — (b) to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (4) If a requirement to provide a sample of breath for breath analysis is imposed on a person under subsection (3)(a), an inspector or police officer who is an authorised operator must conduct a breath analysis of the person. (5) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed in relation to drugs in addition to being analysed for the presence of alcohol or to determine the person’s BAC. [Section 75EH inserted: No. 31 of 2023 s. 15.] ##### 75EI. Power to require breath or blood sample for analysis following commission of certain offences (1) This section applies if an inspector or police officer believes on reasonable grounds that a person has committed an offence against section 75C(1) or 75CA(1). (2) This section also applies if an inspector or police officer — (a) believes on reasonable grounds that a vessel was involved in either — (i) the commission of an offence against section 75B(1) or (2), 75BA(1) or (2) or 75BB(1) or (3); or (ii) an incident occasioning injury to a person or damage to property; and (b) does not know, or has doubt about, who was navigating the vessel at the time of the offence or incident; and (c) believes on reasonable grounds that the person may have been navigating the vessel at that time. (3) The inspector or police officer may require the person — (b) to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (4) If a requirement to provide a sample of breath for breath analysis is imposed on a person under subsection (3)(a), an inspector or police officer who is an authorised operator must conduct a breath analysis of the person. (5) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed in relation to drugs in addition to being analysed for the presence of alcohol or to determine the person’s BAC. [Section 75EI inserted: No. 31 of 2023 s. 15.] ##### 75EJ. Compliance with requirement (1) A person must comply with a requirement imposed on the person under section 75EH or 75EI to provide a sample of breath for breath analysis by providing the sample in accordance with the directions of the authorised officer conducting the breath analysis. (2) A person must comply with a requirement imposed on the person under section 75EH or 75EI to allow a prescribed sample taker to take a sample of the person’s blood for analysis by — [Section 75EJ inserted: No. 31 of 2023 s. 15.] ##### 75EK. Further sample of breath for breath analysis (a) a person provides a sample of breath for breath analysis in accordance with a requirement imposed under section 75EH or 75EI; and (b) breath analysis of the sample fails. (2) An inspector or police officer may require the person to provide 1 additional breath sample for breath analysis under section 75EH or 75EI. (3) If the person provides 2 breath samples for analysis under section 75EH or 75EI and the analysis of each sample fails, the person cannot be required to provide another sample of breath for analysis under those sections. (4) An analysis of a sample of breath is taken to have failed only if the breath analysing equipment used for the analysis does not indicate a result in the prescribed manner. [Section 75EK inserted: No. 31 of 2023 s. 15.] ##### 75EL. When inspector or police officer must not impose testing requirement because of physical incapacity (1) This section applies if it appears to an inspector or police officer that, because of a person’s physical condition, the person is incapable of providing a sample of breath that is sufficient for breath analysing equipment to operate. (2) The inspector or police officer must not require the person to provide a sample of breath for a breath analysis under section 75EH or 75EI. [Section 75EL inserted: No. 31 of 2023 s. 15.] ##### 75EM. Breath analysis indicates BAC of 0.05 or above (1) This section applies if a breath analysis indicates a person has a BAC of 0.05 g or above. (2) The authorised operator who operated the breath analysing equipment used for the breath analysis must immediately give the person a written statement, or a statement printed by the instrument, that includes all of the following information — (a) the date and time the breath sample was taken; (b) the date and time the sample was analysed; (c) the result of the analysis. (3) If the breath analysing equipment indicates a result in the prescribed manner at the conclusion of the analysis, the result indicated by the breath analysing equipment is taken to be the person’s BAC at the time the sample of breath was provided. [Section 75EM inserted: No. 31 of 2023 s. 15.] #### Subdivision 3 — Blood samples in other circumstances including following serious incident ##### 75EN. Power to require blood sample in other circumstances (1) This section applies if an inspector or police officer has power to require a person to provide a sample of breath for breath analysis under section 75EH or 75EI and either — (a) the inspector or police officer is prevented by section 75EK(3) from imposing the requirement; or (b) it appears to the inspector or police officer that the person may be incapable of complying with the requirement because of the person’s physical condition. (2) This section also applies if an inspector or police officer requires a person to provide a sample of breath for breath analysis under section 75EH or 75EI and either — (a) the breath analysis indicates there is no alcohol present in the person’s blood; or (b) both of the following apply — (i) the person’s behaviour, condition or appearance is consistent with that of a person who is under the influence of alcohol or something else; (ii) the breath analysis indicates a BAC that does not reasonably explain the person’s behaviour, condition or appearance. (3) The inspector or police officer may require the person to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (4) If it appears to the inspector or police officer that the person’s physical condition renders them incapable of complying with the requirement, the inspector or police officer may cause a prescribed sample taker nominated by the inspector or police officer to take a sample of the person’s blood for analysis. (5) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed in relation to drugs in addition to being analysed for the presence of alcohol or to determine the person’s BAC. [Section 75EN inserted: No. 31 of 2023 s. 15.] ##### 75EO. Power to require blood sample following incident occasioning death or serious bodily harm (1) This section applies if an inspector or police officer believes on reasonable grounds that — (a) a vessel is involved in an incident occasioning the death of, or grievous bodily harm or serious bodily harm to, a person; and (b) at the time of the incident, a person is or was — (i) navigating, or attempting to operate, the vessel; or (ii) the master of the vessel. (2) The inspector or police officer may require the person to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (3) If it appears to the inspector or police officer that the person’s physical condition renders them incapable of complying with the requirement, the inspector or police officer may cause a prescribed sample taker nominated by the inspector or police officer to take a sample of the person’s blood for analysis. (4) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed in relation to drugs in addition to being analysed for the presence of alcohol or to determine the person’s BAC. (5) For the purposes of subsection (1)(a), serious bodily harm to a person is bodily harm to a person, other than grievous bodily harm, that an inspector or police officer believes on reasonable grounds is likely to require treatment at a hospital, whether or not treatment at a hospital is practicable. [Section 75EO inserted: No. 31 of 2023 s. 15.] ##### 75EP. When inspector or police officer must not require blood sample to be taken If an incident referred to in section 75EO(1)(a) occurs, an inspector or police officer must not require or cause a sample of a person’s blood to be taken under that section in relation to the incident if it appears to the inspector or police officer that the sample cannot be taken within 12 hours after the incident occurred. [Section 75EP inserted: No. 31 of 2023 s. 15.] ##### 75EQ. Compliance with requirement A person must comply with a requirement imposed on the person under section 75EN or 75EO to allow a prescribed sample taker to take a sample of the person’s blood for analysis by — [Section 75EQ inserted: No. 31 of 2023 s. 15.] ### Division 3 — Testing for drugs #### Subdivision 1 — Preliminary oral fluid tests ##### 75F. General power to require oral fluid sample for preliminary oral fluid test (1) An inspector or police officer may require a person to provide a sample of oral fluid for a preliminary oral fluid test if the inspector or police officer believes on reasonable grounds that the person is or was — (a) navigating, or attempting to operate, a vessel; or (b) the master of a vessel. (2) The inspector or police officer must conduct a preliminary oral fluid test of the person in accordance with the prescribed procedure. [Section 75F inserted: No. 31 of 2023 s. 15.] ##### 75FA. Powers to require oral fluid samples for preliminary oral fluid tests (1) This section applies if a vessel is involved in an incident occasioning injury to a person or damage to property and an inspector or police officer — (a) does not know, or has doubt about, who was navigating the vessel at the time of the incident; and (b) believes on reasonable grounds that a person may have been navigating the vessel at that time. (2) The inspector or police officer may require the person to provide a sample of oral fluid for a preliminary oral fluid test. (3) The inspector or police officer must conduct a preliminary oral fluid test of the person in accordance with the prescribed procedure. [Section 75FA inserted: No. 31 of 2023 s. 15.] ##### 75FB. Compliance with requirement A person must comply with a requirement imposed on the person under section 75F or 75FA by providing a sample of the person’s oral fluid for a preliminary oral fluid test in accordance with the directions of the inspector or police officer. [Section 75FB inserted: No. 31 of 2023 s. 15.] #### Subdivision 2 — Drug testing and blood samples ##### 75FC. Power to require oral fluid sample for drug testing following preliminary oral fluid test (1) This section applies if an inspector or police officer requires a person to provide a sample of oral fluid for a preliminary oral fluid test under section 75F or 75FA and either — (a) the preliminary oral fluid test indicates a sample of the person’s oral fluid contains a prescribed illicit drug; or (b) the person refuses or fails to comply with the requirement. (2) The inspector or police officer may require the person to provide a sample of oral fluid for drug testing. (3) An inspector or police officer who is an authorised drug tester must conduct drug testing of the person by — (a) collecting a sample of the person’s oral fluid in the prescribed manner; and (b) conducting the drug testing in accordance with the prescribed procedure. [Section 75FC inserted: No. 31 of 2023 s. 15.] ##### 75FD. Further sample of oral fluid for drug testing (a) a person provides a sample of oral fluid in accordance with a requirement imposed on the person under section 75FC; and (b) the drug testing of the sample using a drug testing device fails. (2) An inspector or police officer may require the person to provide 1 additional sample of oral fluid for drug testing under section 75FC. (3) If the person has provided 2 samples of oral fluid for drug testing under section 75FC and the drug testing of each sample using a drug testing device fails, the person cannot be required to provide another sample of oral fluid for drug testing under that section. (4) For the purposes of this section, the drug testing of a sample of oral fluid is taken to have failed only if the drug testing device used for the drug testing — (a) is not in proper working order; or (b) does not indicate a positive or negative result. [Section 75FD inserted: No. 31 of 2023 s. 15.] ##### 75FE. When inspector or police officer must not impose testing requirement because of physical incapacity (1) This section applies if it appears to an inspector or police officer that, because of a person’s physical condition, the person is incapable of providing a sample of oral fluid that is sufficient for a drug testing device to operate. (2) The inspector or police officer must not require the person to provide a sample of oral fluid for drug testing under section 75FC. [Section 75FE inserted: No. 31 of 2023 s. 15.] ##### 75FF. Power to require blood sample instead of oral fluid sample (a) an inspector or police officer has power to require a person to provide a sample of oral fluid for drug testing under section 75FC; and (b) it appears to the inspector or police officer that the person may be incapable of complying with the requirement because of the person’s physical condition. (2) The inspector or police officer may require the person to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (3) If it appears to the inspector or police officer that the person’s physical condition renders them incapable of complying with the requirement, the inspector or police officer may cause a prescribed sample taker nominated by the inspector or police officer to take a sample of a person’s blood for analysis. (4) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed for the presence of alcohol or to determine the person’s BAC in addition to being analysed in relation to drugs. [Section 75FF inserted: No. 31 of 2023 s. 15.] ##### 75FG. Compliance with requirement (1) A person must comply with a requirement imposed on the person under section 75FC to provide an oral fluid sample for drug testing by providing the sample in accordance with the directions of an authorised drug tester. (2) A person must comply with a requirement imposed on the person under section 75FF to allow a blood sample to be taken by a prescribed sample taker by — [Section 75FG inserted: No. 31 of 2023 s. 15.] #### Subdivision 3 — Assessment of drug impairment and related provisions ##### 75FH. Assessments of drug impairment (1) This section applies if an inspector or police officer believes on reasonable grounds that a person is or was navigating, or attempting to operate, a vessel while impaired by something (other than only alcohol) affecting the person’s capacity to navigate the vessel. (2) This section also applies if a vessel is involved in an incident occasioning injury to a person or damage to property and an inspector or police officer — (a) does not know, or has doubt about, who was navigating, or attempting to operate, the vessel at the time of the incident; and (b) believes on reasonable grounds that a person — (i) may have been navigating, or attempting to operate, the vessel at the time of the incident; and (ii) was impaired by something (other than only alcohol) affecting the person’s capacity to navigate a vessel. (3) The inspector or police officer may require the person to undergo an assessment of drug impairment. (4) An inspector or police officer must conduct an assessment of drug impairment of the person in accordance with the prescribed procedure for conducting the assessment. [Section 75FH inserted: No. 31 of 2023 s. 15.] ##### 75FI. When inspector or police officer must not impose testing requirement because of physical incapacity (1) This section applies if it appears to an inspector or police officer that, because of a person’s physical condition, the person is incapable of undergoing an assessment of drug impairment. (2) The inspector or police officer must not require the person to undergo an assessment of drug impairment under section 75FH. [Section 75FI inserted: No. 31 of 2023 s. 15.] ##### 75FJ. Power to require blood samples for drug analysis (1) This section applies if an inspector or police officer — (a) requires a person to undergo an assessment of drug impairment under section 75FH and either — (i) it appears to the inspector or police officer that the assessment indicates the person is impaired by a drug; or (ii) the person fails to comply with the requirement; or (b) is prevented by section 75FI from requiring a person to undergo an assessment of drug impairment because of the person’s physical condition. (2) The inspector or police officer may require the person to allow a prescribed sample taker to take a sample of the person’s blood for analysis. (3) If it appears to the inspector or police officer that the person’s physical condition renders them incapable of complying with the requirement, the inspector or police officer may cause a prescribed sample taker nominated by the inspector or police officer to take a sample of a person’s blood for analysis. (4) A sample of a person’s blood taken in accordance with a requirement under this section may be analysed for the presence of alcohol or to determine the person’s BAC in addition to being analysed in relation to drugs. [Section 75FJ inserted: No. 31 of 2023 s. 15.] ##### 75FK. Compliance with requirement (1) A person must comply with a requirement imposed on the person under section 75FH to undergo an assessment of drug impairment by undergoing the assessment in accordance with the directions of the inspector or police officer. (2) A person must comply with a requirement imposed on the person under section 75FJ to allow a prescribed sample taker to take a sample of the person’s blood for analysis by — [Section 75FK inserted: No. 31 of 2023 s. 15.] ### Division 4 — Enforcement powers relating to testing for alcohol and drugs ##### 75G. Requirement to leave vessel, accompany inspector or police officer to place or wait at place (1) An inspector or police officer may require a person to leave a vessel, accompany an inspector or police officer to a specified place or wait at a specified place for any of the following purposes — (a) to impose an alcohol or drug testing requirement on the person; (b) for a sample of the person’s breath, oral fluid or blood to be provided or taken in accordance with an alcohol or drug testing requirement; (c) for an assessment of drug impairment to be carried out in relation to a person in accordance with an alcohol or drug testing requirement. (2) An inspector or police officer may require a person to do 1 or more things under subsection (1), or impose further requirements on the person under that subsection, as is reasonable in the circumstances to achieve a purpose referred to in subsection (1)(a), (b) or (c). (3) A requirement given to a person under subsection (1) ceases to have effect to the extent that an inspector or police officer — (a) gives the person a later inconsistent requirement; or (b) indicates to the person that the requirement no longer has effect. (4) A person must comply with a requirement imposed on the person under subsection (1) in accordance with the directions of the inspector or police officer. [Section 75G inserted: No. 31 of 2023 s. 15.] ##### 75GA. Requirement to stop vessel or navigate to suitable location (1) This section applies if an inspector or police officer believes on reasonable grounds that it may be necessary to impose an alcohol or drug testing requirement on a person on a vessel. (2) The inspector or police officer may give a person navigating the vessel a direction requiring the person to — (a) stop the vessel at a specified place; or (b) navigate the vessel to a specified place that the inspector or police officer considers is suitable for — (i) the purposes of imposing an alcohol or drug testing requirement on a person; or (ii) another purpose under this Part or Part 3A. For the purposes of paragraph (b), a suitable place may be a location to fasten a vessel to a mooring, wharf or jetty or a location close to the shore. (3) An inspector or police officer may require a person to do 1 or more things under subsection (2), or impose further requirements on the person under that subsection, as is reasonable in the circumstances to achieve a purpose referred to in subsection (2)(a) or (b)(i) or (ii). (4) A requirement under subsection (2) may be given to a person orally or by means of a sign or signal (electronic or otherwise), or in any other manner. (5) A requirement given under subsection (2) to a person ceases to have effect to the extent that an inspector or police officer — (a) gives the person a later inconsistent direction; or (b) indicates to the person that the direction no longer has effect. (6) A person must comply with a requirement imposed on the person under subsection (2) in accordance with the directions of the inspector or police officer. [Section 75GA inserted: No. 31 of 2023 s. 15.] ##### 75GB. Power to board and move vessel (1) An inspector or police officer may board a vessel, or move a vessel to a place for safe custody — (a) if the inspector or police officer believes on reasonable grounds that the vessel has been used in connection with an offence under Part 3A or this Part; or (b) for the purposes of imposing an alcohol or drug testing requirement on a person on the vessel. (2) An inspector or police officer may require a person on the vessel, or the owner, operator, master or pilot of the vessel, to take reasonable steps to facilitate the boarding or moving of the vessel under subsection (1). (3) A person must comply with a requirement imposed on the person under subsection (2) in accordance with the directions of the inspector or police officer. [Section 75GB inserted: No. 31 of 2023 s. 15.] ##### 75GC. Power to prevent use of vessel by alleged offender key includes a device or thing that allows a vessel to be operated. Example for this definition: A lanyard for a lanyard kill switch on an outboard motor. (2) This section applies if an inspector or police officer has reason for suspecting that a person has committed an offence against any of the sections specified in the Table. (3) The inspector or police officer may require the person to immediately give each key to a vessel in the person’s possession — (a) to the inspector or police officer; or (b) to another person in the person’s company if the inspector or police officer is satisfied that the other person — (i) is authorised to navigate the vessel; and (ii) is responsible and able to navigate the vessel properly. (4) An inspector or police officer may impose a requirement under subsection (3) — (a) if satisfied that the requirement is necessary in the circumstances and is in the interests of the person, or of any other person or of the public; and (b) whether or not the person has been or is to be charged with an offence. (5) If the keys to a vessel are given to an inspector or police officer under subsection (3)(a), the inspector or police officer may take any appropriate and practicable steps to ensure that the vessel is secure and not causing an obstruction. (6) Those steps may include moving the vessel to a more suitable place. (7) Before giving the keys to a vessel to a person under subsection (3)(b), an inspector or police officer may require the person to provide a sample of breath for a preliminary breath test for the purposes of the inspector or police officer being satisfied that the person is able to navigate the vessel properly. [Section 75GC inserted: No. 31 of 2023 s. 15.] ##### 75GD. Compliance with requirement A person commits an offence if the person — (a) fails to comply with any requirement imposed on the person under section 75GC(3); or (b) obstructs, or attempts to obstruct, an inspector or police officer in the exercise of a power under section 75GC(3), (5) or (7). Penalty for this subsection: a fine of $600. [Section 75GD inserted: No. 31 of 2023 s. 15.] ##### 75GE. Return of keys to vessel (1) This section applies if the keys to a vessel are given to an inspector or police officer under section 75GC(3)(a). (2) If a person asks an inspector or police officer to give the person the keys to the vessel, the inspector or police officer must comply with the request if satisfied that the person — (a) is entitled to lawful possession of the vessel or is in the company of a person who is entitled to lawful possession of the vessel; and (b) is authorised to navigate the vessel; and (c) is responsible and able to navigate the vessel properly. (3) Before giving keys to a vessel to a person under subsection (2), an inspector or police officer may require the person to provide a sample of breath for a preliminary breath test for the purposes of the inspector or police officer being satisfied that the person is able to navigate the vessel properly. (4) If keys to a vessel are not given to a person who makes a request under subsection (2) within 24 hours after the request is made, the person may apply to the Magistrates Court for an order for the keys to be given to the person named in the application. [Section 75GE inserted: No. 31 of 2023 s. 15.] ##### 75GF. Prohibiting person from navigating vessel for 24 hours if prescribed illicit drug present (a) drug testing of a sample of a person’s oral fluid indicates a prescribed illicit drug is present; or (b) each of the following applies — (i) a preliminary oral fluid test of a sample of the person’s oral fluid gives a preliminary indication that a prescribed illicit drug is present; (ii) an inspector or police officer is prevented by section 75FE from requiring the person to provide a sample of oral fluid for drug testing; (iii) the inspector or police officer requires the person to allow a prescribed sample taker to take the person’s blood for analysis under section 75FF; or (c) a preliminary oral fluid test of a sample of the person’s oral fluid gives a preliminary indication that a prescribed illicit drug is present and, because of section 75FD(3), the person cannot be required to provide another sample of oral fluid for drug testing; or (d) the person refuses or fails to provide a sample of oral fluid for a preliminary oral fluid test or drug testing, or to allow a sample of the person’s blood to be taken for analysis, having been required to do so under Division 3. (2) An inspector or police officer may give the person a notice (a prohibition notice) prohibiting the person from navigating a vessel for 24 hours. (3) A prohibition under subsection (2) applies in relation to a vessel if a WA marine qualification is required to navigate the vessel under this Act. (4) A prohibition notice given to a person under subsection (2) must be given personally. (5) A person given a prohibition notice commits an offence if the person fails to comply with the notice. (a) for a first offence, a fine of $1 250; (b) for a second or subsequent offence, a fine of $2 000. [Section 75GF inserted: No. 31 of 2023 s. 15.] ##### 75GG. Requirements for prohibition notice A prohibition notice under section 75GF must — (a) specify the grounds on which the notice is given, including when subsection (1) of that section applied to the person; and (b) contain a statement to the effect that, because the person has been given the notice, the person must not navigate a vessel for a period commencing on receipt of the notice and ending 24 hours after receipt of the notice; and (c) specify the time at which the person is given the prohibition notice and when the 24‑hour period ends. [Section 75GG inserted: No. 31 of 2023 s. 15.] ### Division 5 — Failure to comply with alcohol or drug testing requirements #### Subdivision 1 — General offences relating to failure to comply with alcohol or drug testing requirements ##### 75H. Failure to comply with requirement: preliminary breath test, preliminary oral fluid test or boarding or moving vessel (a) a requirement to provide a sample of breath for a preliminary breath test under section 75EE or 75EF; or (b) a requirement to provide a sample of oral fluid for a preliminary oral fluid test under section 75F or 75FA; or (c) a leave vessel, accompany officer or wait requirement relating to a requirement referred to in paragraph (a) or (b); or (d) a requirement to take reasonable steps to facilitate an inspector or police officer boarding or moving a vessel under section 75GB. (a) for a first offence, a fine of not less than $450 or more than $1 200; (b) for a second or subsequent offence, a fine of not less than $900 or more than $2 100. (2) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) for a first offence, for a period of not less than 3 months; (b) for a second or subsequent offence, for a period of not less than 6 months. (3) In determining whether an offence against subsection (1) is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75H inserted: No. 31 of 2023 s. 15.] ##### 75HA. Defence: compliance with later requirement (1) It is a defence to a charge of an offence against section 75H(1) for the person charged to prove that the person complied with a later requirement that arose out of — (a) the person’s failure to comply with the requirement the subject of the charge; or (b) the circumstances that gave rise to the requirement the subject of the charge. (2) For the purposes of subsection (1), a later requirement is — (a) in relation to a requirement referred to in section 75H(1)(a) — (i) a requirement to provide a sample of breath for breath analysis under section 75EH or 75EI; or (ii) a requirement to allow a blood sample to be taken for analysis under section 75EH or 75EI; or (b) in relation to a requirement referred to in section 75H(1)(b) — (i) a requirement to provide a sample of oral fluid for drug testing under section 75FC; or (ii) a requirement to allow a blood sample to be taken for analysis under section 75FF. [Section 75HA inserted: No. 31 of 2023 s. 15.] ##### 75HB. Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place (a) a requirement to provide a sample of breath for breath analysis under section 75EH or 75EI; or (b) a requirement to allow a sample of the person’s blood to be taken for analysis under section 75EH, 75EI, 75EN or 75EO; or (c) a leave vessel, accompany officer or wait requirement imposed in relation to a requirement referred to in paragraph (a) or (b); or (d) a requirement to stop a vessel at, or navigate a vessel to, a specified place under section 75GA. (i) if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $5 650; (ii) if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (iii) if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (c) for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $4 750 or more than $11 250. (2) If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | (e) 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence | 42 months | | Third or subsequent offence | Permanent | (3) In determining whether an offence against this section is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). [Section 75HB inserted: No. 31 of 2023 s. 15.] ##### 75HC. Failure to comply with requirement: incident occasioning death, grievous bodily harm or bodily harm (1) A person commits a crime if the person commits an offence against section 75HB(1) in the circumstance of aggravation stated in subsection (2). Alternative offence for this subsection: section 75HB(1) (Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place). Penalty for this subsection: imprisonment for 14 years or a fine of any amount. Summary conviction penalty for this subsection: imprisonment for 18 months or a fine of $8 000. (2) For the purposes of subsection (1), the circumstance of aggravation is that when an inspector or police officer imposes the requirement on the person the subject of the offence against section 75HB(1), the inspector or police officer — (a) advises the person that the inspector or police officer believes the vessel the person was, or is believed to have been, navigating was involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, another person; and (b) explains the consequences of failing to comply with the requirement to the person. (3) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification as follows — (a) in relation to a conviction on indictment — for a period of not less than 2 years; (b) in relation to a summary conviction — for a period of not less than 18 months. [Section 75HC inserted: No. 31 of 2023 s. 15.] ##### 75HD. Failure to comply with requirement: oral fluid sample for drug testing or blood sample (a) a requirement to provide a sample of oral fluid for drug testing under section 75FC; or (b) a requirement to allow a sample of the person’s blood to be taken for analysis under section 75FF; or (c) a leave vessel, accompany officer or wait requirement imposed in relation to a requirement referred to in paragraph (a) or (b). (a) for a first offence, a fine of not more than $1 250; (b) for a second or subsequent offence, a fine of not less than $1 250 or more than $2 000. (2) A court sentencing a person for a second or subsequent offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 6 months. (3) In determining whether an offence against this section is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75HD inserted: No. 31 of 2023 s. 15.] ##### 75HE. Failure to comply with requirements relating to assessment of drug impairment (a) a requirement to undergo an assessment of drug impairment under section 75FH; or (b) a requirement to allow a blood sample to be taken for analysis under section 75FJ; or (c) a leave vessel, accompany officer or wait requirement imposed in relation to a requirement referred to in paragraph (a) or (b). (a) for a first offence, a fine of not less than $1 750 or more than $3 750; (2) A court sentencing a person for an offence against subsection (1) must order that the person is disqualified from holding or obtaining a WA marine qualification — (a) for a first offence, for a period of not less than 10 months; (b) for a second offence, for a period of not less than 30 months; (c) for a third or subsequent offence, permanently. (3) In determining whether an offence against this section is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75HE inserted: No. 31 of 2023 s. 15.] #### Subdivision 2 — Failure to comply with drug testing requirements in circumstances relating to person’s BAC ##### 75HF. Term used: drug testing requirement In this Subdivision — drug testing requirement means — (a) a requirement to provide a sample of oral fluid for drug testing under section 75FC; or (b) a requirement to allow a sample of blood to be taken for analysis under section 75FF or 75FJ; or (c) a leave vessel, accompany officer or wait requirement imposed in relation to a requirement referred to in paragraph (a) or (b). [Section 75HF inserted: No. 31 of 2023 s. 15.] ##### 75HG. Failure to comply with drug testing requirement: BAC of 0.05 or above (1) A person commits an offence if the person fails to comply with a drug testing requirement in circumstances that, before an inspector or police officer makes the drug testing requirement of the person — (b) the breath analysis conducted by an authorised operator indicates that the person has a BAC of 0.05 g or above. | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) the court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the minimum period of disqualification specified in the Table. Table | ≥ 0.05 g but < 0.07 g | Min: Max: Disq: | $1 900 3 months | $1 900 $3 000 9 months | $1 900 $3 000 12 months | | ≥ 0.07 g | Min: Max: Disq: | $1 900 3 months | $1 900 $3 000 12 months | $1 900 $3 000 15 months | Note: ≥ signifies of or above (3) In determining whether an offence against this section is a first, second or subsequent offence, a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75HG inserted: No. 31 of 2023 s. 15.] ##### 75HH. Failure to comply with drug testing requirement: BAC of 0.08 or above (1) A person commits an offence if the person fails to comply with a drug testing requirement in circumstances that, before an inspector or police officer makes the drug testing requirement of the person — (b) the breath analysis conducted by an authorised operator indicates that the person has a BAC of 0.08 g or above. | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (a) the person is liable to a penalty of a fine of not less than the minimum fine or more than the maximum fine specified in the Table; and (b) the court convicting the person must, in any event, order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the minimum period of disqualification specified in the Table. Table | ≥ 0.08 g but < 0.09 g | Min: Max: Disq: | $1 150 $3 400 9 months | $2 400 $3 400 12 months | $2 400 $3 400 15 months | | ≥ 0.09 g but < 0.11 g | Min: Max: Disq: | $1 300 $3 400 11 months | $2 550 $3 400 15 months | $2 550 $3 400 20 months | | ≥ 0.11 g but < 0.13 g | Min: Max: Disq: | $1 500 $3 400 12 months | $2 700 $4 500 21 months | $2 700 $4 500 26 months | | ≥ 0.13 g | Min: Max: Disq: | $1 750 $3 400 14 months | $3 600 $5 650 27 months | $3 600 $6 750 42 months | Note: ≥ signifies of or above (3) In determining whether an offence against this section is a first, second or subsequent offence — (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75HH inserted: No. 31 of 2023 s. 15.] ##### 75HI. Failure to comply with drug testing requirement: BAC of 0.15 or above (1) A person commits an offence if the person fails to comply with a drug testing requirement in circumstances that, before an inspector or police officer makes the drug testing requirement of the person — (b) the breath analysis conducted by the inspector or police officer indicates that the person has a BAC of 0.15 g or above. | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (i) if the person has 1 or more previous convictions for a 0.08+ offence — a fine of not less than $2 400 or more than $5 650; (ii) if the person has 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (iii) if the person has 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence — a fine of not less than $3 600 or more than $5 650; (c) for a third or subsequent offence, imprisonment for 18 months or a fine of not less than $4 750 or more than $11 250. (2) If a person is convicted of an offence against subsection (1), a court sentencing the person must order that the person is disqualified from holding or obtaining a WA marine qualification for not less than the period of disqualification specified in the Table. | (e) 1 or more previous convictions for a 0.08+ offence and 1 or more previous convictions for a 0.08+ and illicit drug offence | 42 months | | Third or subsequent offence | Permanent | (3) In determining whether an offence against this section is a first, second or subsequent offence — (a) a previous offence against subsection (1) is to be taken into account regardless of the person’s BAC when committing the offence; and (b) a previous offence against a provision specified in the Table must be taken into account as if it were an offence against subsection (1). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | [Section 75HI inserted: No. 31 of 2023 s. 15.] #### Subdivision 3 — Defence for failing to comply with alcohol or drug testing requirement ##### 75HJ. Substantial reasons for failing to comply with requirements or later providing certain samples It is a defence to a charge of an offence of failing to comply with an alcohol or drug testing requirement for the person charged to prove that the substantial reason for the failure to comply was a reason other than to avoid providing information that might be used as evidence. [Section 75HJ inserted: No. 31 of 2023 s. 15.] ### Division 6 — General provisions relating to alcohol and drug testing ##### 75I. Responsibility to facilitate medical assistance (1) This section applies if it appears to an inspector or police officer that a person on whom the inspector or police officer may impose an alcohol or drug testing requirement is unconscious or seriously injured. (2) The inspector or police officer must facilitate the provision of medical assistance for the person. [Section 75I inserted: No. 31 of 2023 s. 15.] ##### 75IA. When inspector or police officer must not impose testing requirement because of passage of time (1) This section applies if an inspector or police officer has power under Division 2 or 3 to require a person — (b) to provide a sample of oral fluid for drug testing; or (c) to allow a sample of the person’s blood to be taken for analysis; or (d) to undergo an assessment of drug impairment. (2) The inspector or police officer must not impose the requirement on the person if it appears to the inspector or police officer that the sample cannot be taken, or the assessment of drug impairment cannot be conducted, within 4 hours after the circumstances giving rise to the requirement occurred. (3) This section applies subject to section 75EP. Section 75EP allows a requirement to allow or cause a sample of a person’s blood to be taken within 12 hours after an incident occurs in particular circumstances. [Section 75IA inserted: No. 31 of 2023 s. 15.] ##### 75IB. Taking of oral fluid samples for oral fluid analysis (a) an authorised drug tester conducts drug testing of a sample of a person’s oral fluid provided in compliance with a requirement imposed under section 75FC; and (b) in the opinion of the authorised drug tester, the drug testing indicates that the person’s oral fluid contains a prescribed illicit drug. (2) The sample must be divided into 2 parts, each of which is taken be a sample of the person’s oral fluid for the purposes of this Act. (3) The authorised drug tester must ensure that both samples are delivered to an inspector or police officer. (4) An inspector, police officer or other person engaged for the purpose must deliver 1 of the samples to the Chemistry Centre (WA) on behalf of the person who provided the sample. See section 75IF for the obligations of the Chemistry Centre (WA) relating to the sample. [Section 75IB inserted: No. 31 of 2023 s. 15.] ##### 75IC. Authorisation for prescribed sample takers authorised to take blood samples (1) A prescribed sample taker is authorised to take a sample of a person’s blood for analysis if an inspector or police officer under this Part — (a) has required a person to allow a prescribed sample taker nominated by the inspector or police officer to take a sample of the person’s blood for analysis; or (b) causes a prescribed sample taker to take a sample of the person’s blood for analysis. (2) No action lies against a prescribed sample taker by reason only of the person taking a sample of a person’s blood for analysis under this Part. [Section 75IC inserted: No. 31 of 2023 s. 15.] ##### 75ID. Authorisation to take blood samples when person deceased serious incident means an incident in which a vessel is involved that occasions the death of, or injury, to a person. (2) This section applies if — (a) a person who may have been on a vessel when the vessel was involved in a serious incident is dead on arrival at a hospital or dies in a hospital before a sample of the person’s blood can be taken; and (b) were the person alive, they — (i) may have been required to allow a prescribed sample taker to take a sample of the person’s blood for analysis in accordance with an alcohol or drug testing requirement; or (ii) may have been a person for whom a prescribed sample taker may have been caused to take a sample of the person’s blood for analysis. (3) The medical practitioner who reports the death under the *Coroners Act 1996* section 17(3) may — (a) take a sample of blood from the body of the person; or (b) as soon as practicable after reporting the death, notify the coroner that a sample of blood should be taken from the person’s body because of the circumstances of the person’s death. (4) If the coroner is notified under subsection (3)(b), the coroner may direct and authorise a pathologist to take a sample of blood from the person’s body. (5) A person is not obliged to take a sample of blood under this section if another sample of blood has previously been taken from the person’s body in accordance with an alcohol or drug testing requirement relating to the serious incident. [Section 75ID inserted: No. 31 of 2023 s. 15.] ##### 75IE. Taking blood samples for analysis (1) This section applies if a prescribed sample taker takes a sample of a person’s blood for analysis in accordance with an alcohol or drug testing requirement imposed on the person. (2) The sample must be taken — (a) in accordance with the regulations or otherwise in a proper manner; and (b) either — (i) as a single sample which is then divided into 2 parts; or (ii) as 2 samples taken 1 immediately after the other. (3) If 2 samples of the person’s blood are taken under subsection (2)(b) — (a) the 2 samples are taken to be a single sample, taken at the time the first of the 2 samples was taken; and (b) each of the 2 samples is taken to be — (i) a part of that single sample that has been divided into 2 parts; and (ii) a sample of the person’s blood for the purposes of this Act. (4) The prescribed sample taker must ensure that both samples are delivered to an inspector or police officer. (5) An inspector, police officer or other person engaged for the purpose must deliver 1 of the samples to the Chemistry Centre (WA) on behalf of the person from whom the samples were taken. See section 75IF for the obligations of the Chemistry Centre (WA) relating to the sample. (6) If a sample of a person’s blood is analysed for alcohol by an analyst in accordance with the regulations, the BAC of the sample is the analysis result and is taken to be the person’s BAC at the time the sample of blood was taken. [Section 75IE inserted: No. 31 of 2023 s. 15.] ##### 75IF. Oral fluid and blood samples delivered to Chemistry Centre (WA) (1) This section applies to a sample of oral fluid or blood delivered to the Chemistry Centre (WA) on behalf of a person under section 75IB(4) or 75IE(5). (2) The Chemistry Centre (WA) must retain and appropriately store the sample until the person requests it. (3) Within 3 months after the day on which the sample is given to the Chemistry Centre (WA), the person may ask for the sample to be delivered to an analyst (as defined in the *Misuse of Drugs Act 1981* section 3(1)) nominated by the person for analysis. (4) The cost of delivering the sample must be paid for by the person. (5) The Chemistry Centre (WA) is not required to store the sample for more than 3 months. [Section 75IF inserted: No. 31 of 2023 s. 15.] ##### 75IG. Samples of oral fluid or blood not to be used to obtain DNA profile sample means a sample of oral fluid or blood taken from or provided by a person (the subject) and given to an inspector or police officer under section 75IB or 75IE. (2) A person must not use a sample to obtain the subject’s DNA profile. Penalty for this subsection: imprisonment for 12 months. [Section 75IG inserted: No. 31 of 2023 s. 15.] ### Division 7 — Administrative matters ##### 75J. Regulations relating to alcohol and drug testing and other matters (1) The regulations may make provision in relation to testing for alcohol or drugs, including — (a) the procedures for, or equipment to be used in — (i) conducting a preliminary breath test, breath analysis, preliminary oral fluid test or drug testing; or (ii) taking a sample of oral fluid or a blood sample; or (b) the destruction of a sample, or other forensic material, taken under this Part. (2) Regulations may apply or adopt instruments under the *Road Traffic Act 1974* for a purpose under this Act — (a) with or without modifications; or (b) as in force at a particular time or from time to time. [Section 75J inserted: No. 31 of 2023 s. 15.] ##### 75JA. Minister may approve alcohol and drug testing devices The Minister may approve, by notice published in the *Gazette*, any of the following — (a) a type of device that uses a sample of a person’s breath to indicate 1 or more of the following — (i) a person’s BAC; (ii) whether a person’s BAC is of a particular level or above; (iii) whether or not alcohol is present in the person’s blood; (b) a type of device that analyses a sample of a person’s breath to determine the person’s BAC; (c) a type of device that provides a preliminary indication of the presence of a prescribed illicit drug in a sample of a person’s oral fluid; (d) a type of device that ascertains whether a prescribed illicit drug is present in a sample of a person’s oral fluid. [Section 75JA inserted: No. 31 of 2023 s. 15.] ##### 75JB. Delegation by Commissioner of Police (1) The Commissioner of Police may delegate the Commissioner’s power under section 75EA(2), 75EB(2) or 124HP(2) to — (a) a specified police officer; or (b) a police officer of a specified class; or (c) a person who is employed in the department of the Public Service principally assisting in the administration of the *Police Act 1892*. (2) The delegation must be in writing signed by the Commissioner of Police. (3) A person to whom a power is delegated under this section cannot delegate that power. (4) A person performing a power that has been delegated to the person is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (5) Nothing in this section limits the ability of the Commissioner of Police to exercise a power or perform a function through an officer or agent. [Section 75JB inserted: No. 31 of 2023 s. 15.] ## Part 4 — International Conventions [Heading amended: No. 24 of 2023 s. 55.] ### Division 1 — General ##### 76. Terms used In this Part, unless the contrary intention appears — applied provisions of the Limitation Convention means the provisions of the Limitation Convention that, as provided by section 84, have the force of law as part of the law of the State; container has the same meaning as in the Container Convention; Container Convention means the International Convention for Safe Containers as corrected by the Proces‑Verbal of Rectification dated 25 June 1976 (a copy of the English text of the articles of which, and of the annexes to which, as so corrected, is set forth in Schedule 1) as affected by — (a) any amendment of the Convention, other than an amendment not accepted by Australia, made under Article IX of the Convention; and (b) any amendment of the annexes to the Convention, other than an amendment objected to by Australia, made under Article X of the Convention; Limitation Convention means the International Convention relating to the limitation of the liability of owners of sea‑going ships signed at Brussels on 10 October 1957, (a copy of the English text of which is set forth in Schedule 2); Prevention of Collisions Convention means the Convention on the *International Regulations for Preventing Collisions at Sea, 1972* (a copy of the English text of the articles of which is set forth in Schedule 3), together with the *International Regulations for Preventing Collisions at Sea, 1972*, constituted by the rules, and other annexes attached to that Convention, as corrected by the Proces‑Verbal of Rectification dated 1 December 1973 (a copy of the English text of which rules and other annexes, as so corrected, is also set forth in Schedule 3), as affected by any amendment, other than an amendment objected to by Australia, made under Article VI of that Convention; Protocol of 1978 relating to the Safety Convention means the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974 (a copy of the English text of the articles of which, and of part of the annex to which, is set forth in Schedule 5), as affected by any amendment, other than an amendment objected to by Australia, made under Article VIII of the International Convention for the Safety of Life at Sea, 1974, as incorporated in that Protocol by Article II of that Protocol; Safety Convention means the International Convention for the Safety of Life at Sea, 1974 (a copy of the English text of the articles of which, and of part of the annex to which, is set forth in Schedule 4), as affected by any amendment, other than an amendment objected to by Australia, made under Article VIII of that Convention and, after the date on which the Protocol of 1978 relating to the Safety Convention enters into force for Australia, as also affected by that Protocol; sea includes any waters within the ebb and flow of the tide; and sheltered water passenger vessel means a passenger vessel permitted to operate in partially smooth and smooth waters only. ##### 77. Regulations under this Part [(1) deleted] (2) Regulations made under this Part may make provision for or with respect to any matter by applying, adopting or incorporating, with or without modification — (a) the provisions of any Act, or of any regulations, as in force at a particular time or as in force from time to time; or (b) any matter contained in any other instrument or writing as in force or existing at the time when the first‑mentioned regulations take effect, but the regulations shall not, except as provided by this subsection, make provision for or with respect to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. [Section 77 amended: No. 78 of 1995 s. 147; No. 24 of 2023 s. 56.] ##### 78. Regulations giving effect to Conventions: discretion of Governor and Minister (1) Where, under this Part, the Governor is empowered to make regulations for and in relation to giving effect to any of the provisions of the Container Convention, the Safety Convention or the Prevention of Collisions Convention, the power shall, in the case of a provision of any of those Conventions the terms of which are such as to vest in the several Governments who are parties to the Convention a discretion as to whether any, and if so what, action should be taken under the Convention, be construed as an authority to the Governor to make by regulation such provision (if any) with respect to the matter in question as the Governor in the exercise of that discretion thinks proper. (2) Notwithstanding any regulation made under any provision of this Part for the purpose of giving effect to any provision of the Container Convention, the Safety Convention or the Prevention of Collisions Convention which requires a particular fitting, material, appliance or apparatus, or type thereof, to be fitted or carried in a ship, or any particular provision to be made in a ship, the Minister may allow any other fitting, material, appliance or apparatus, or type thereof, to be fitted or carried, or any other provision to be made if the Minister is satisfied that that other fitting, material, appliance or apparatus, or type thereof, of provision, is at least as effective as that required by the relevant Convention. [Section 78 amended: No. 24 of 2023 s. 57.] ### Division 2 — Prevention of Collisions Convention ##### 79. Regulations giving effect to Prevention of Collisions Convention (1) The regulations may make provision for and in relation to giving effect to the Prevention of Collisions Convention in relation to vessels, while they are in State waters. (2) A person shall not contravene a regulation made under subsection (1). Penalty for this subsection: a fine of $10 000 or imprisonment for 2 years. (3) The regulations referred to in subsection (1) may make provision for applying, adopting or incorporating, with or without modification, the Prevention of Collisions Convention. [Section 79 amended: No. 24 of 2023 s. 58; No. 31 of 2023 s. 16.] ### Division 3 — Container Convention ##### 80. Regulations giving effect to Container Convention (1) The regulations may make provision for and in relation to giving effect to the Container Convention in relation to containers in the State. (2) Without limiting the generality of subsection (1), regulations made for the purpose of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section. ##### 81. Safety requirements and tests not required or permitted by the Container Convention not to be imposed (1) Nothing in a law in force in the State at the commencement of this Division shall, after that commencement, be taken as imposing or authorising the imposition of structural safety requirements or tests on containers to which the Container Convention applies in relation to containers in the State that are not required or permitted by that Convention to be imposed on containers to which it applies. (2) Nothing in subsection (1) shall be taken to preclude the application in relation to containers in the State to which the Container Convention applies of a law in force in the State that prescribes additional structural safety requirements or tests of a kind referred to in paragraph (2) of Article V of that Convention. ### Division 4 — Limitation Convention and limitation provisions ##### 82. Interpretation In this Division, except in so far as the contrary intention appears, a word or expression used in this Division has the same meaning as in the Limitation Convention. ##### 83. Application (1) The provisions of this Division shall be read subject to any law in force in the State to the extent that, by giving effect to an international agreement to which Australia is a party, it excludes or limits the right of the owner of a sea‑going ship to limit his liability in accordance with the Limitation Convention. (2) A reference in subsection (1) to the provisions of this Division shall be read as including a reference to the applied provisions of the Limitation Convention and the provisions of any regulations made for the purposes of section 87. ##### 84. Provisions of Limitation Convention having force of law (1) Subject to section 85, the provisions of the Limitation Convention, other than Article 1(1)(c) of that Convention, have the force of law of as part of the law of the State in relation to — (a) a trading ship within the meaning of section 6 of the former Navigation Act proceeding on a voyage other than an overseas voyage or an inter‑state voyage; and (b) an Australian fishing vessel within the meaning of section 6 of that Act proceeding on a voyage other than an overseas voyage; and (c) an inland waterways vessel within the meaning of section 6 of that Act; and (d) a pleasure craft within the meaning of section 6 of that Act; and (e) an off‑shore industry vessel within the meaning of section 8 of that Act — (i) in respect of which there is not in force a declaration under section 8A(2) of that Act; and (ii) that is proceeding on a voyage other than an overseas voyage or an inter‑state voyage. (2) In subsection (1), inter‑state voyage and overseas voyage have the same meanings as in section 6 of the former Navigation Act. (3) A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage. [Section 84 amended: No. 24 of 2023 s. 59.] ##### 85. Limitation in relation to non‑seagoing ferries Notwithstanding section 84, in relation to a trading ship or an inland waterways vessel which in either case is a sheltered water passenger vessel, the Limitation Convention shall be read and construed as if the following paragraphs were substituted for Article 3 — (1) The amount to which the owner of a sheltered water passenger vessel may limit his liability under Article 1 shall be an aggregate amount of $45 000 for each passenger permitted by the vessel’s certificate of survey. (2) The distribution of the limitation fund among the claimants shall be made in proportion to the amounts of their established claims. (3) If before the fund is distributed the owner has paid in whole or in part any of the claims set out in Article 1 paragraph (1), he shall *pro tanto* be placed in the same position in relation to the fund as the claimant whose claim he has paid. (4) Where the ship owner establishes that he may at a later date be compelled to pay in whole or in part any of the claims set out in Article 1 paragraph (1) the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable the ship owner at such later date to enforce his claim against the fund in the manner set out in the preceding paragraph. ##### 86. Application to determine liability (1) Where a claim is, or claims are, made against or apprehended by a person in respect of any liability of that person that he may limit in accordance with the applied provisions of the Limitation Convention, the person may apply to the Supreme Court (whether or not in the course of other proceedings) to determine the limit of that liability in accordance with those provisions, and the Court may so determine the limit of that liability and may make such order or orders as it thinks fit with respect to the Constitution, administration and distribution in accordance with those provisions, of a limitation fund for the payment of claims in respect of which the person is so entitled to limit his liability. (2) The Supreme Court to which an application has been made under subsection (1) may, if the Court thinks fit, at any stage in the proceedings, upon application or of its own motion, by order, transfer the proceedings to the Supreme Court of another State or Territory of the Commonwealth. (3) Where proceedings are transferred from the Supreme Court in pursuance of subsection (2), all documents filed of record, and moneys lodged, in the Supreme Court shall be transmitted by the Master to the Registrar or other proper officer of the Court to which the proceedings are transferred. (4) Where proceedings are transferred to the Supreme Court by a Court of another State or Territory of the Commonwealth in pursuance of a law of that State or Territory analogous to this section, the Supreme Court shall proceed as if the proceedings had been originally instituted in the Supreme Court and as if the same proceedings had been taken in that Court as had been taken in the Court from which the proceedings are transferred. (5) For the purposes of this Division, amounts of money expressed in the franc mentioned in Article 3 of the Convention shall be converted into Australian currency in the manner provided by the *Navigation (Limitation of Shipowners’ Liability) Regulations* of the Commonwealth or by regulations substituted for or amending those regulations. ##### 87. Regulations giving effect to Limitation Convention (1) The regulations may prescribe matters that are necessary or convenient to be prescribed for the purposes of carrying out or giving effect to the applied provisions of the Limitation Convention and, for or in connection with those purposes, may make provision for and in relation to the ascertainment of the tonnage of ships, vessels or craft mentioned in section 84(1) including the estimation of such tonnage in circumstances where it is not possible or reasonably practicable to measure their tonnage. (2) Subsection (1) shall not be taken as limiting the power of the Judges of the Supreme Court to make rules with respect to a matter that is not provided for in regulations made under subsection (1). ##### 88. Ship owner not to be liable in certain cases of loss of, or damage to, goods The owner of a ship, vessel or craft mentioned in section 84(1) shall not be liable to make good to any extent whatever any loss or damage happening without his actual fault or privity where — (a) any goods, merchandise or other things whatsoever taken in or put on board the ship are lost or damaged by reason of fire on board the ship; or (b) any goods, being gold, silver, diamonds watches, jewels or precious stones taken in or put on board the ship, the true nature and value of which have not, at the time of shipment, been declared by the owner or shipper thereof to the owner or master of the ship in the bills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with or secreting thereof. ##### 89. Ship owner not entitled to limit liability in respect of claims by crew etc. (1) The owner of a ship is not entitled to limit his liability in respect of a claim that is made by the master or any other member of the crew of the ship, or by a servant of the owner on board the ship, or by a servant of the owner whose duties are connected with the ship, where the claim arises from an occurrence of a kind specified in subparagraph (1)(a) or (b) of Article 1 of the Limitation Convention. (2) The reference in subsection (1) to the master or any other member of the crew of a ship, or a servant of the owner of a ship on board the ship, or a servant of the owner of a ship whose duties are connected with the ship, shall be read as including a reference to the heirs, personal representatives and dependants of the master or other member of the crew, or servant of the owner, as the case may be. ### Division 5 — Safety Convention ##### 90. Regulations giving effect to Safety Convention (1) The regulations may make provision for or in relation to giving effect to a provision of Chapter V of the Regulations contained in the Annex to the Safety Convention (other than Regulation 13 or 15 of that Chapter of those Regulations) with respect to — (a) a trading ship within the meaning of section 6 of the former Navigation Act proceeding on a voyage other than an overseas voyage or an inter‑state voyage; or (b) an Australian fishing vessel within the meaning of section 6 of that Act proceeding on a voyage other than an overseas voyage; or (c) an inland waterways vessel within the meaning of section 6 of that Act; or (d) a pleasure craft within the meaning of section 6 of that Act; or (e) an off‑shore industry vessel within the meaning of section 8 of that Act — (i) in respect of which there is not in force a declaration under section 8A(2) of that Act; and (ii) that is proceeding on a voyage other than an overseas voyage or an inter‑state voyage. (2) In subsection (1), inter‑state voyage and overseas voyage have the same meanings as in section 6 of the former Navigation Act. (3) A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purposes of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage. (4) Where a provision of the Safety Convention applies only in relation to a particular class of ships or in relation to ships engaged on a particular class of voyages, any regulation under subsection (1) that gives effect to that provision may be applied to ships of any other class mentioned in that subsection or to such ships engaged in any other class of voyages other than an overseas voyage or, except in the case of an Australian fishing vessel, an inter‑state voyage. [Section 90 amended: No. 24 of 2023 s. 60.] ## Part 5 — Carriage of dangerous goods [Heading amended: No. 24 of 2023 s. 61.] ##### 91. Restriction on carriage of dangerous goods (1) A person shall not carry dangerous goods in a vessel or place dangerous goods, or cause dangerous goods to be placed, on board a vessel for carriage in the vessel unless — (a) the outside of the package containing the goods is distinctly marked with a description of the goods in the manner required under the *Dangerous Goods Safety Act 2004*; and (b) a description in writing of the goods (not being a description contained in the ordinary shipping documents) is given to the owner and master of the vessel at or before the time the goods are placed on board the vessel. (2) Subsection (1) does not apply to the owner or master of the vessel. [Section 91 amended: No. 7 of 2004 s. 70; No. 24 of 2023 s. 62.] ##### 92. Penalty for misdescription of goods and sender (1) A person shall not knowingly send by or carry in any vessel from any port in the State any dangerous goods under a false description. (2) Where any dangerous goods are on board a vessel, or are to be placed on board a vessel, a person shall not knowingly falsely describe the sender of the goods on any package containing the goods or in any document relating to the shipping of the goods. [Section 92: Correction: Gazette 26 Jul 2013 p. 3354; amended: No. 24 of 2023 s. 63.] ##### 93. Powers of owner or master as to dangerous goods (1) The owner or master of any vessel may refuse to take on board at any port in the State any package which the owner or master suspects contains dangerous goods and may require it to be opened and may inspect the contents. (2) If any dangerous goods, or any goods which in the opinion of the owner or master of the vessel are dangerous goods, have been sent or brought aboard any vessel without being marked as required by section 91 or without notice having been given as required by that section, the owner or master of the vessel may cause the goods to be thrown overboard, with any package or receptacle in which they are contained, and neither the owner nor the master shall be subject to any liability, civil or criminal, for doing so. [Section 93 amended: No. 24 of 2023 s. 64.] ##### 94. Forfeiture of dangerous goods (1) Where any dangerous goods have been sent or carried or an attempt has been made to send or carry dangerous goods on board any vessel at any port in the State without being marked as required by section 91 or without notice having been given as required by that section, or under a false description, or with a false description of the sender or carrier thereof, any court having Admiralty jurisdiction may declare those goods and any receptacle in which they are contained to be, and they shall thereupon be, forfeited, and when forfeited shall be disposed of as the court directs. (2) The court shall have, and may exercise, the powers of forfeiture and disposal notwithstanding that the owner of the goods has not committed any offence under the provisions of this Act relating to dangerous goods, and is not before the court, and has not notice of the proceedings and notwithstanding that there is no evidence to show to whom the goods belong; but the court may in its discretion require such notice as it may direct to be given to the owner or shipper of the goods before declaring them to be forfeited. [Section 94 amended: No. 24 of 2023 s. 65.] ##### 95. Minister may prohibit carriage of cargo If in the opinion of the Minister, the carriage of any particular cargo or goods in any vessel would endanger its safety or interfere with the comfort of its passengers or crew, the Minister may give notice to the master or owner that the carriage in the vessel of the cargo or goods specified in the notice is prohibited and, after receiving such a notice, the master shall not cause the vessel to be underway, and the owner shall not permit the vessel to be underway, with the prohibited cargo or goods. Penalty: a fine of $2 000. [Section 95 amended: No. 24 of 2023 s. 66.] ##### 96. Regulations as to dangerous goods The regulations may deal with the carriage of dangerous goods, including by — (a) prescribing the classes of vessel in which dangerous goods may be carried; and (b) providing for the quantities of dangerous goods that may be carried from any port in the State in such vessels; and (c) providing for the precautions to be observed in connection with the loading and unloading of dangerous goods at any port in the State; and (d) providing for the conditions as to packing and stowage of dangerous goods, and the ventilation of holds containing dangerous goods, loaded at any port in the State. [Section 96 inserted: No. 24 of 2023 s. 67.] ##### 97. Explosives on passenger vessels (1) If a vessel carrying passengers carries explosives, the explosives shall be protected in the manner directed by the chief executive officer. (2) The master and the owner of a vessel on which explosives are carried contrary to subsection (1) are each guilty of an offence. (3) This section does not apply to explosives forming part of the equipment or stores required for the navigation, safety, or maintenance of the vessel. (4) Without limiting any power conferred on an inspector or authorised person under this Act, an inspector or authorised person may seize and detain without warrant any explosives which are in or on board a vessel contrary to this section. (5) Explosives seized under this section may be forfeited on the order of a court of summary jurisdiction and disposed of as the court directs. [Section 97 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 68.] ## Part 6 — Pleasure vessels and prescribed vessels [Heading inserted: No. 24 of 2023 s. 69.] [98. Deleted: No. 24 of 2023 s. 69.] ##### 99. Regulations in respect of pleasure vessels and prescribed vessels (1) The regulations may deal with the registration, navigation and operation of pleasure vessels and prescribed vessels, including by — (a) prescribing the duties of owners, masters and operators of pleasure vessels and prescribed vessels; (b) providing for the registration and transfer of registration of pleasure vessels and prescribed vessels, and the suspension or cancellation of registration; (c) prohibiting the navigation of a pleasure vessel or a prescribed vessel in a class of pleasure vessel or prescribed vessel that the chief executive officer has determined under subsection (2) cannot be navigated safely; (d) providing for the maintenance and repair of pleasure vessels and prescribed vessels; (e) providing for the equipment that must be provided on pleasure vessels and prescribed vessels and the use and maintenance of the equipment; (f) providing for the inspection of pleasure vessels and prescribed vessels and their equipment by inspectors or authorised persons, and the powers of authorised persons who carry out those inspections; (g) providing for design and construction requirements for pleasure vessels and prescribed vessels; (h) prescribing the age of persons who may operate or be in command or charge of pleasure vessels and prescribed vessels; (i) providing for the crewing of pleasure vessels and prescribed vessels, including the qualifications required by masters and crew; (j) providing for the provision and use on pleasure vessels and prescribed vessels of lights and signals; (k) providing for the licensing of owners, masters, operators and crew of pleasure vessels and prescribed vessels, including — (i) issuing licences; and (ii) authorising the chief executive officer to grant exemptions in relation to licences; and (iii) assessing the competency of people to hold licences; (ka) providing for schemes for assessing the competency of people to hold licences in relation to owners, masters, operators and crew of pleasure vessels and prescribed vessels; (l) providing for the safe navigation of pleasure vessels and prescribed vessels, including emergency and safety management procedures and the testing or auditing of those procedures; (m) providing for the inspection or survey of prescribed vessels, including by providing for — (i) the powers of authorised persons who carry out those inspections or surveys; (ii) certificates of survey, the conditions to which they are subject and the renewal, transfer, suspension or cancellation of them; (iii) the recognition of certificates of survey issued under a law of another Australian jurisdiction; (n) providing for requirements relating to the hiring of prescribed vessels and duties of hirers of prescribed vessels. (2) The chief executive officer may, for the purposes of regulations made under subsection (1)(c), determine, by notice published in the *Gazette*, that a class of pleasure vessel or prescribed vessel cannot be navigated safely if satisfied that that is the case. (3) The *Interpretation Act 1984* section 43(8)(d) does not limit subsection (1)(k) or (ka). [Section 99 inserted: No. 24 of 2023 s. 69; amended: No. 31 of 2023 s. 17.] ## Part 7 — Seaplanes [Heading inserted: No. 24 of 2023 s. 70.] ##### 100. Certain provisions of Act and regulations apply to seaplanes seaplane means an aircraft capable of taking off from and landing on water. (2) In the following provisions, unless the contrary intention appears, a reference to a vessel or a pleasure vessel includes a reference to a seaplane and a reference to navigation includes a reference to the operation of a seaplane on water — (a) section 3A(1)(a); (b) sections 58A, 59, 60, 64, 64A, 64B, 64C, 64D, 65, 66, 67 and 68; (c) section 79; (d) section 99(1)(b), (i) and (j); (e) sections 114(1A)(a), (c), (d), (e), (h) and (i) and (1D) and 115A; (f) the provisions of regulations made under or for the purposes of a provision listed in paragraphs (a) to (e); (g) a provision of this Act or the regulations that applies in relation to or has effect for the purposes of a provision listed in paragraphs (a) to (f) — to the extent necessary for that application or effect. [Section 100 inserted: No. 24 of 2023 s. 70; amended: No. 31 of 2023 s. 18.] [**101‑106.** Deleted: No. 24 of 2023 s. 70.] ## Part 8 — Supplementary and administrative provisions [Heading amended: No. 24 of 2023 s. 71.] ### Division 1 — Information protection, disclosure and exchange [Heading inserted: No. 24 of 2023 s. 72.] ##### 107. Terms used Commonwealth or interstate authority means a person or body with functions of a public nature under a law of another Australian jurisdiction; details, of a person, includes (as is relevant) the person’s — (a) name; (b) Australian Company Number; (c) residential address; (d) business address; (e) email address; (f) telephone number; (g) date of birth; incident information has the meaning given in section 112(1); infringement notice information means information about infringement notices under this Act, including information about the following — (a) the giving of an infringement notice to a person; (b) the payment of an amount of money in accordance with an infringement notice; (c) the withdrawal of an infringement notice; (d) a matter in relation to which an infringement notice was issued coming before a court for determination; (e) the registration of an infringement notice under the *Fines, Penalties and Infringement Notices Enforcement Act 1994* Part 3; (f) any withdrawal of proceedings under the *Fines, Penalties and Infringement Notices Enforcement Act 1994* Part 3 in relation to an infringement notice; marine Act means 1 of the following — (a) the *Harbours and Jetties Act 1928*; (b) the *Jetties Act 1926*; (c) the *Lights (Navigation Protection) Act 1938*; (d) the *Marine and Harbours Act 1981*; (e) the *Marine Navigational Aids Act 1973*; (f) the *Pollution of Waters by Oil and Noxious Substances Act 1987*; (g) the *Sea‑Carriage of Goods Act 1909*; (h) the *Shipping and Pilotage Act 1967*; (i) the *Transport Co‑ordination Act 1966* to the extent that it relates to ferries and ships; marine qualification information means information about marine qualifications, including details of the following — (a) the persons who have made applications for or in relation to marine qualifications; (b) the persons who hold or have held marine qualifications; (c) suspensions and cancellations of marine qualifications; (d) in relation to a particular qualification — any conditions or restrictions on the qualification; mooring authorisation means an authorisation (including a mooring licence) under this Act to use a mooring; mooring information means — (a) information about mooring authorisations, including details of the following — (i) the holders of mooring authorisations; (ii) the vessels and moorings to which mooring authorisations relate; (iii) the registered owners of vessels to which mooring authorisations relate, including past owners; (iv) the registration (if any) of mooring authorisations, including transfers of mooring authorisations; and (b) information about the use of moorings, including unauthorised use; offence information means details of the following — (a) any offence under this Act or a marine Act with which a person has been charged or of which a person has been convicted; (b) any penalty, suspension, cancellation or disqualification arising from any such conviction; (c) the quashing or setting aside of any such conviction; overseas authority means a person or body with functions of a public nature under a law of an overseas jurisdiction; registered owner, of a vessel registered under regulations made for the purposes of section 99(1)(b), means the person specified as the owner of the vessel in the register; vessel information means information about vessels, including the following — (a) information about registration of vessels, including transfers of registration; (b) details of the registered owners of vessels, including past owners; (c) hull identification numbers of vessels; (d) details of makes and models of vessels; (e) details of certificates of survey and operation; (f) information prescribed for the purposes of this definition. [Section 107 inserted: No. 24 of 2023 s. 72; amended: No. 31 of 2023 s. 19.] ##### 108. Protection of information (1) A person must not, directly or indirectly, record, use or disclose information that was obtained by the person when performing a function under this Act, unless permitted to do so under subsection (2). Penalty for this subsection: imprisonment for 12 months or a fine of $12 000. (2) The person may record, use or disclose the information — (a) for the purpose of performing a function that the person has under this Act or a marine Act; or (b) as required or allowed under this Act or another written law; or (c) under the order of a court or person or body acting judicially; or (d) for the purposes of the investigation of a suspected offence or disciplinary matter or the conduct of proceedings against a person for an offence or disciplinary matter; or (e) if the information is personal information — with the consent of the person to whom it relates; or (f) in circumstances prescribed for the purposes of this subsection. (3) Subsection (1) does not prevent the recording, use or disclosure of statistical or other information (de‑identified information) that could not reasonably be expected to lead to the identification of a person to whom it relates. (4) The chief executive officer may — (a) publish de‑identified information; and (b) provide unpublished de‑identified information to a person on payment of a fee (if any) determined by the chief executive officer. (5) A fee under subsection (4)(b) cannot exceed the costs and expenses of the Department in preparing or collating the information for the person. [Section 108 inserted: No. 24 of 2023 s. 72.] ##### 109. Exchange of information between chief executive officer and Commissioner of Police (1) The chief executive officer must disclose the following information to the Commissioner of Police — (c) incident information; (d) offence information; (e) infringement notice information; (f) vessel information; (g) information prescribed for the purposes of this subsection. (2) Information disclosed under subsection (1) — (a) may be used in the performance of the functions of the Commissioner of Police, whether under a written law or otherwise, but not for any other purpose; and (b) may be disclosed by the Commissioner of Police to an officer, department or instrumentality of the State, another Australian jurisdiction or an overseas jurisdiction for use in the performance of the law enforcement functions of that officer, department or instrumentality, but not for any other purpose. (3) The Commissioner of Police must disclose the following information to the chief executive officer — (a) incident information; (b) general offence information; (c) infringement notice information; (d) information prescribed for the purposes of this subsection. (4) In subsection (3)(b) — general offence information means offence information as defined in section 107, as if that definition were not limited to offences under this Act or a marine Act. (5) Information disclosed under subsection (3) may be used in the performance of the chief executive officer’s functions under this Act or a marine Act, but not for any other purpose. [Section 109 inserted: No. 24 of 2023 s. 72.] ##### 110. Exchange of information between chief executive officer and other authorities relevant authority means — (a) a Commonwealth or interstate authority or an overseas authority with the function of granting marine qualifications; and (b) a Commonwealth or interstate authority with functions, under a law of that jurisdiction, that correspond, or substantially correspond, to functions of the chief executive officer under this Act; and (c) a person prescribed, or of a class prescribed, for the purposes of this definition. (2) The chief executive officer may disclose the following information to a relevant authority if the chief executive officer considers that the information is required by the relevant authority for the purposes of performing its functions — (c) infringement notice information; (d) offence information; (e) vessel information; (f) information prescribed for the purposes of this subsection. (3) If information disclosed under subsection (2) includes information about an offence of which a person has been convicted or for which a person has been given an infringement notice, the chief executive officer must also disclose to the relevant authority, at the time or subsequently when the information becomes known to the chief executive officer, information about the following — (a) any quashing or setting aside of the conviction; (b) the withdrawal of the infringement notice; (c) the matter in relation to which the infringement notice was issued coming before a court for determination; (d) the registration of the infringement notice under the *Fines, Penalties and Infringement Notices Enforcement Act 1994* Part 3; (e) the withdrawal of proceedings under the *Fines, Penalties and Infringement Notices Enforcement Act 1994* Part 3 in relation to the infringement notice; (f) anything else concerning the offence, the disclosure of which is likely to be favourable to that person. (4) The chief executive officer may seek from a relevant authority any information that the chief executive officer considers is required for the purposes of performing the chief executive officer’s functions under this Act or a marine Act. (5) The chief executive officer may, for the purposes of performing the chief executive officer’s functions under this Act or a marine Act, use information obtained from a relevant authority. [Section 110 inserted: No. 24 of 2023 s. 72.] ##### 111. Disclosure of information to prescribed persons for authorised purposes authorised purpose means — (a) the purpose of performing functions under a written law or a law of another jurisdiction; or (b) a purpose related to the administration or enforcement of a written law or a law of another jurisdiction; or (c) a purpose prescribed for the purposes of this definition; prescribed person means a person prescribed, or of a class prescribed, for the purposes of this definition. (2) The chief executive officer may disclose the following information to a prescribed person if the chief executive officer considers that the information is required by the person for an authorised purpose — (c) vessel information; (d) information prescribed for the purposes of this subsection. (3) A person to whom information is disclosed under subsection (2), or who is employed or engaged by or for a person to whom information is disclosed under subsection (2), must not use the information for a purpose other than the authorised purpose for which it was disclosed. Penalty for this subsection: imprisonment for 12 months or a fine of $12 000. [Section 111 inserted: No. 24 of 2023 s. 72.] ##### 112. Disclosure of incident information de‑identified incident information means statistical or other information derived from incident information, that could not reasonably be expected to lead to the identification of a person to whom it relates; incident information means information relating to a marine incident, including the following — (a) details of any evidence, statement, report or other information obtained as a result of any investigation of the incident; (b) a copy of a statement or report produced as a result of any investigation of the incident; marine incident has the meaning given in section 64; marine safety education purpose means — (a) the purpose of research directed to the promotion of marine safety; or (b) the purpose of distributing information about marine safety. (2) The chief executive officer or the Commissioner of Police may disclose incident information in relation to a marine incident to a person involved in the incident. (3) A person is a person involved in a marine incident, for the purposes of this section, if the person was — (a) on board a vessel involved in the incident; or (b) the owner of a vessel involved in the incident; or (c) injured or suffered loss as a result of the incident; or (d) otherwise involved (other than indirectly) in the incident. (4) The chief executive officer may provide de‑identified incident information to a person for a marine safety education purpose, on payment of a fee (if any) determined by the chief executive officer, if the chief executive officer considers that the information is required by the person for that purpose. (5) A fee under subsection (4) cannot exceed the costs and expenses of the Department in preparing or collating the information for the person. [Section 112 inserted: No. 24 of 2023 s. 72.] ##### 113. Disclosure by means of automated system (1) A disclosure of information that the chief executive officer or the Commissioner of Police is authorised or required to make under this Division may, subject to the regulations, be made by means of an automated system. (2) An automated system must comply with the requirements (if any) set out in the regulations. (3) An automated system may, subject to the regulations, allow relevant persons to retrieve data in the system and to be sent alerts about data that has been modified or added to the system. [Section 113 inserted: No. 24 of 2023 s. 72.] ### Division 2 — Regulations [Heading inserted: No. 24 of 2023 s. 73.] ##### 114. Powers in relation to regulations (1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act and in particular — (a) providing for the control, supervision and guidance of inspectors, authorised persons and other persons with functions under this Act, and for prescribing the form and manner of signing of, and the persons authorised to sign, notices, certificates, returns, statements, declarations, licences and other documents to be given, made, or issued under this Act, and for the promulgation of all acts, matters and things necessary, expedient or convenient for carrying into operation or for facilitating the operation of this Act; and (b) prescribing the fees, charges and expenses to be charged or made in respect of matters arising under or provided for or authorised by this Act; and (c) prescribing the form or contents of applications, licences, permits, certificates, registers, notices, orders, exemptions, dispensations and other documents required for the purposes of this Act or authorising the chief executive officer to specify forms required to be used. (1A) Without limiting subsection (1), the regulations may do any of the following — (a) regulate noise, fumes and smoke arising from the operation of vessels; (b) regulate or prohibit water‑related activities of any kind on or in all or specified State waters; (c) regulate or prohibit the use of all or specified State waters — (i) by all or specified vessels; or (ii) for specified purposes; (d) provide for safety in respect of the navigation, mooring and berthing of vessels, including (without limitation) by providing for the following — (i) the prohibition of the navigation of a vessel that an inspector determines cannot be navigated safely; (ii) the regulation of the navigation of a vessel that an inspector determines cannot be navigated safely except in accordance with the conditions or restrictions imposed on the navigation of the vessel by the inspector; (e) regulate the towing of vessels and other objects and provide for the issue of towage permits; (f) regulate the conduct and management of passengers; (g) provide for the designation of waters, including the designation of waters by reference to the vessels that are or are not permitted to operate in those waters; (h) provide for traffic management plans that regulate the movement of vessels, persons and other things in or on specified State waters and for the enforcement of those plans; (i) provide for the following — (i) the removal from State waters, or from land immediately adjacent to State waters, of things that, in the opinion of the chief executive officer, are or are likely to become hazards or obstructions; (ii) the storage and the destruction, sale or other disposal of things that are removed, including the acquisition of good title to things that are sold or otherwise disposed of; (iii) the application of the proceeds of sale of things that are removed; (iv) the creation of a charge in respect of things that are removed and the declaration, under the *Personal Property Securities Act 2009* (Commonwealth) section 73(2)(a), that section 73(2) of that Act applies to the charge; (v) the recovery of costs incurred in the removal, storage, destruction, sale or disposal, including costs of work done on the removed thing and legal or other professional fees and disbursements for effecting the removal, storage, destruction, sale or disposal; (j) provide for the qualifications required by the hirer of a hire and drive vessel that is a domestic commercial vessel. (1B) Without limiting subsection (1A), regulations made for the purposes of subsection (1A)(c) or (d) may authorise the chief executive officer to deal with a matter covered by the paragraph by order published on the WA legislation website. (1C) An authorisation referred to in subsection (1B) may only be exercised if — (a) the chief executive officer is satisfied that the regulations do not deal with or adequately deal with the matter; and (b) the matter needs to be dealt with urgently; and (c) the order is temporary. (1D) Regulations made for the purposes of subsection (1A)(i) in relation to the removal of vessels — (a) must provide that a vessel cannot be removed unless — (i) the chief executive officer is satisfied that the vessel is an immediate danger to safety or the environment; or (ii) the chief executive officer has given the owner of the vessel at least 7 days’ notice of the proposed removal; and (b) must provide that, if a vessel is removed without notice as described in paragraph (a)(ii), the chief executive officer must give notice of the removal to the owner of the vessel; and (c) may provide for the details to be included in notice given under paragraph (a)(ii) or (b). (1E) In subsection (1A)(j) — hire and drive vessel and hirer have the meanings given in the Scheduled Domestic Commercial Vessel National Law section 6. (1F) A reference in subsection (1D) to the owner of a vessel is, in relation to a vessel registered under regulations made for the purposes of section 99(1)(b), a reference to the person specified in the register as the owner of the vessel. (2) Regulations may be made under this Act, whether or not for the particular purposes of any Part or Division — (a) so as to provide that contravention of or failure to comply with a regulation constitutes an offence, and may provide for penalties not exceeding a fine of $15 000, or $75 000 for a body corporate, and if the offence is a continuing offence a further fine not exceeding $200 for every day or part of a day during which the offence continues after notice of the offence; and (aa) so as to provide that the breach of a condition imposed in relation to any exemption or dispensation from the provisions of the regulations, or of a direction, notice, order or rule, under this Act, constitutes an offence, and may provide for penalties not exceeding a fine of $3 000, or $15 000 for a body corporate, and if the offence is a continuing offence a further fine not exceeding $100 for every day or part of a day during which the offence continues after notice of the offence; and (b) so as to prescribe, subject to subsection (3), a modified penalty for any offence, or class of offence, if dealt with under a section of this Act authorising the service of an infringement notice and the payment of a modified penalty in relation to such an offence; and (c) so as to apply — (i) generally or in a particular class of case or in particular classes of cases; and (ii) at all times or at a specified time or at specified times; and (iii) in all waters or in specified waters, or throughout the State or in a specified part or specified parts of the State; and (d) so as to require a matter affected by them to be — (i) in accordance with a specified standard or specified requirement; or (ii) as approved by, or to the satisfaction of, a specified person or body or a specified class of person or body; and (e) so as to confer on a specified person or body or a specified class of person or body a discretionary authority; and (f) so as to provide that, in specified cases or a specified class of case or specified classes of cases whether on specified conditions or unconditionally, persons or things of a class or classes of persons or things may be exempted from the provisions of the regulations or of a direction, notice, order or rule under this Act, either wholly or to such extent as is specified; and (g) so as to authorise the chief executive officer, at any time, to cancel an exemption or dispensation wholly or in part, and to cancel, or from time to time waive, add to, or otherwise vary the condition of an exemption or dispensation. (3) A modified penalty prescribed under subsection (2)(b) for an offence — (a) must be an amount of money; and (b) must not exceed — (i) in relation to an offence under Part 3A or Part 3B or section 124GS(2) — $2 000; or (ii) in relation to any other offence — 20% of the penalty specified for the offence. [Section 114 amended: No. 35 of 1990 s. 21; No. 24 of 2023 s. 74; No. 31 of 2023 s. 20.] ##### 115. Regulations may adopt codes etc. (1) Regulations made under this Act may — (a) adopt, either wholly or in part or with modifications and either specifically or by reference, any subsidiary legislation or other instrument under any Act of the State, another Australian jurisdiction or the United Kingdom or any of the standards, rules, codes or specifications of the bodies known as Standards Australia, the British Standards Institution, the International Organization for Standardization, the Australian Maritime Safety Authority (established by the *Australian Maritime Safety Authority Act 1990* (Commonwealth)) or other like body specified in the regulations; and (b) incorporate by reference, with or without modification, all or any of the provisions of the Uniform Shipping Laws Code or the National Standard for Commercial Vessels; and (c) provide that where by reason of unavailability of materials or other reason that the chief executive officer considers valid any requirement adopted by the rules or regulations cannot be conformed to, the chief executive officer may approve such use of materials or other matters as the chief executive officer considers to be consistent with the achievement of the objects of the rules or regulations. [(2) deleted] [Section 115 amended: No. 35 of 1990 s. 21; No. 74 of 2003 s. 130; No. 24 of 2023 s. 75.] ### Division 3 — Exemptions and equivalents [Heading inserted: No. 24 of 2023 s. 76.] ##### 115A. Exemptions and equivalents (1) The chief executive officer may exempt from the application of a specified provision of this Act or the regulations persons or vessels, or classes of person or vessel, if satisfied that compliance with the provision is unreasonable or impractical. (1A) The chief executive officer may exempt from the application of a specified provision of this Act or the regulations persons or vessels, or classes of person or vessel, engaged in an aquatic event or activity, if satisfied that appropriate measures will be taken to ensure the safety of competitors, spectators and members of the public generally. (1B) The chief executive officer must ensure that written notice of an exemption under this section is — (a) if the exemption is under subsection (1) and for a person or in respect of a vessel — given to the person or master or owner of the vessel; or (b) if the exemption is under subsection (1) and in respect of a class of person or vessel — made publicly available; or (c) if the exemption is under subsection (1A) — given to the applicant for the exemption or the organiser of the aquatic event or activity. (1C) Failure to comply with subsection (1B) does not affect the validity of an exemption. (2) In exercising the power conferred by subsection (1) or (1A), the chief executive officer shall have regard to the principles embodied in this Act and the regulations made under this Act. (3) Where under this Act provision is made that a particular fitting, material, appliance, or apparatus, or type thereof, shall be fitted or carried in a vessel or in vessels in a specified class of vessel, or that any particular provision shall be made, the chief executive officer may allow any other fitting, material, appliance, or apparatus, or type thereof, to be fitted or carried, or any other provision to be made if the chief executive officer is satisfied, by trial or otherwise, that such fitting, material, appliance, or apparatus, or such provision is at least as effective as that required under this Act. (3A) Subsections (1B) and (1C) apply, with necessary modifications, to an allowance under subsection (3) in the same way as they apply to an exemption under this section. (4) The chief executive officer may grant an exemption or make an allowance under this section subject to such conditions as the chief executive officer thinks fit. (5) A person who fails to comply with a condition to which an exemption or allowance is subject commits an offence. [Section 115A inserted: No. 35 of 1990 s. 15; amended: No. 24 of 2023 s. 77.] ### Division 4 — Inspectors and authorised persons [Heading inserted: No. 24 of 2023 s. 78.] [**116.** Deleted: No. 24 of 2023 s. 79.] ##### 117. Designation (1) The chief executive officer may, by instrument in writing, designate an officer of the Department or any other person to be an inspector or authorised person for the purposes of specified provisions of this Act. (2) The chief executive officer may, by instrument in writing, designate the members of a class of police officer as inspectors for the purposes of specified provisions of this Act. (3) A designation may be limited by reference to specified purposes or specified cases, or both. [Section 117 inserted: No. 24 of 2023 s. 79.] ##### 118. Identity cards (1) The chief executive officer must issue an identity card to each inspector and authorised person, other than a police officer. (2) An identity card must — (a) be in a form approved by the chief executive officer; and (b) contain a recent photograph or digital image of the inspector or authorised person; and (c) specify that the person is an inspector or authorised person under this Act. (3) A person who ceases to be an inspector or authorised person must, as soon as practicable, return their identity card to the chief executive officer or to another person authorised by the chief executive officer to receive it. Penalty for this subsection: a fine of $1 000. (4) Subsection (3) does not apply if the identity card has been lost or destroyed. (5) The production in any proceedings of an identity card is, in the absence of evidence to the contrary, sufficient evidence of the designation of the inspector or authorised person to whom the card relates. [Section 118 inserted: No. 24 of 2023 s. 79.] ##### 118A. Proof of authority (1) An inspector or authorised person, other than a police officer, must produce their identity card if requested to do so by a person in relation to whom the inspector or authorised person has exercised, or is about to exercise, a power under this Act. (2) A police officer who is not in uniform must produce evidence that they are a police officer if requested to do so by a person in relation to whom the police officer has exercised, or is about to exercise, a power under this Act. [Section 118A inserted: No. 24 of 2023 s. 79.] ##### 118B. Persons assisting inspectors and authorised persons (1) An inspector or authorised person intending to exercise a power under this Act may authorise as many other persons as are reasonably necessary in the circumstances to assist in the exercise of the power. (2) Anything lawfully done by a person assisting an inspector or authorised person under this section is taken for all purposes to have been done by the inspector or authorised person. (3) A person assisting an inspector or authorised person to exercise a power must, in doing so, comply with any reasonable directions of the inspector or authorised person. [Section 118B inserted: No. 24 of 2023 s. 79.] ### Division 5 — Certain offences [Heading inserted: No. 24 of 2023 s. 80.] ##### 119. Penalty for obstruction A person who wilfully assaults, obstructs, endeavours to intimidate, or uses abusive or offensive language to, or disobeys a lawful requisition or order of, a person (the official) performing or endeavouring to perform a power or duty conferred on the official by or under this Act, whether on board a vessel or elsewhere, is guilty of an offence and is liable to a fine not exceeding $5 000 and may be detained by the official or by any person whom the official may call to their assistance until the offender can be conveniently taken before a court having appropriate jurisdiction. [Section 119 amended: No. 24 of 2023 s. 81.] ##### 120. Penalty for false declarations etc. A person who knowingly — (a) makes a false declaration, false statement or false representation; or (b) gives false evidence on oath, in connection with an application or proceeding under this Act is guilty of an offence. Penalty: (a) for an individual — a fine of $5 000; (b) for a body corporate — a fine of $10 000. [Section 120 amended: No. 24 of 2023 s. 82.] ##### 120A. Inspector may request details (1) An inspector may request any person whom the inspector believes on reasonable grounds to have committed an offence under this Act to give the inspector 1 or more of the following — (a) the person’s name; (b) the person’s residential address; (c) the person’s date of birth; (d) evidence of the person’s identity. (2) A person who fails to comply with a request made under subsection (1) or who gives false information when such a request is made commits an offence. [Section 120A inserted: No. 24 of 2023 s. 83.] ##### 121. Offences in connection with certificates, licences etc. (1) A person shall not — (a) knowingly make a false representation for the purpose of obtaining a certificate, licence, permit, exemption or dispensation either for themselves or for another person; or (b) forge or fraudulently alter a certificate, licence, permit, exemption or dispensation; or (c) fraudulently use a certificate, licence, permit, exemption or dispensation that is forged, altered, cancelled or suspended or to which the person is not justly entitled; or (d) allow a person to use fraudulently a certificate, licence, permit, exemption or dispensation that does not relate to that person. (a) for an individual — a fine of $3 000; (b) for a body corporate — a fine of $10 000. (2) In this section, certificate, licence, permit, exemption or dispensation means a certificate, licence, permit, exemption or dispensation issued granted, or recognized under this Act and includes a certified copy of such a certificate, licence, permit, exemption or dispensation. [Section 121 amended: No. 24 of 2023 s. 84.] ### Division 6 — Liability ##### 122. Liability of chief executive officer and owner for costs and compensation in relation to detained vessels (1) If a vessel is detained under section 61 and subsection (3) does not apply, the owner of the vessel is liable to pay to the chief executive officer the reasonable costs of and incidental to the detention and inspection of the vessel, which costs are, without prejudice to any other remedy, recoverable by the chief executive officer in a court of competent jurisdiction. (2) For the purposes of subsection (1), the costs referred to include the costs of and incidental to any proceeding before the State Administrative Tribunal under section 63C and the remuneration of any person designated under section 63(2) to inspect the vessel and provide a report. (3) If there was no reasonable cause for the detention of a vessel under section 61, the chief executive officer is liable to pay the owner of the vessel — (a) the owner’s costs of and incidental to the detention and inspection of the vessel; and (b) compensation for any loss or damage sustained by the owner by reason of the detention or inspection. [Section 122 inserted: No. 24 of 2023 s. 86.] ##### 123. No liability for certain acts and omissions (1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act. (2) The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted. (3) The Minister, the chief executive officer, the Commissioner of Police, and the State are also relieved of any liability that any of them might otherwise have had for another person having done anything as described in subsection (1). (4) In this section, a reference to the doing of anything includes a reference to an omission to do anything. [Section 123 inserted: No. 24 of 2023 s. 86; amended: No. 31 of 2023 s. 21.] ### Division 7 — Administration ##### 124. Delegation by Minister (1) The Minister may delegate to a person any power or duty of the Minister under another provision of this Act. (2) The delegation must be in writing signed by the Minister. (3) If a power or duty is delegated to the chief executive officer, the delegation may expressly authorise the chief executive officer to further delegate the power or duty under section 124A. (4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (5) Nothing in this section limits the ability of the Minister to perform a function through an officer or agent. [Section 124 inserted: No. 24 of 2023 s. 86.] ##### 124A. Delegation by chief executive officer (1) The chief executive officer may delegate to a person any power or duty of the chief executive officer under another provision of this Act. (2) The delegation must be in writing signed by the chief executive officer. (3) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (4) Nothing in this section limits the ability of the chief executive officer to perform a function through an officer or agent. [Section 124A inserted: No. 24 of 2023 s. 86.] ##### 124B. Agreement for performance of chief executive officer’s functions (1) The chief executive officer may enter into an agreement providing for the chief executive officer’s functions under this Act that are described in the agreement to be performed on behalf of the chief executive officer. (2) The agreement may be with the Commissioner of Police, a local government, or any other person or body, whether or not the person or body has itself functions of a public nature. (3) A function described in the agreement may be performed — (a) in accordance with the agreement; and (b) on the terms and subject to the conditions in the agreement. (4) If the performance of a function is dependent upon the opinion, belief or state of mind of the chief executive officer, it may be performed under the agreement upon the opinion, belief or state of mind of the person with whom the agreement is made or another person provided for in the agreement. (5) The chief executive officer may disclose the following to the person with whom the agreement is made if the chief executive officer considers that the disclosure is required for the purposes of the performance of a function under the agreement — (c) vessel information. (6) For the purposes of this Act or any other written law, an act or thing done by, to, by reference to, or in relation to, a person in connection with the performance by that person under the agreement of a function of the chief executive officer is as effectual as if it had been done by, to, by reference to or in relation to, the chief executive officer. [Section 124B inserted: No. 24 of 2023 s. 86.] ### Division 8 — Miscellaneous ##### 124C. Giving notices, orders, directions and other documents electronic means includes — (a) an electronic database or document system; and (b) any other means by which a document can be accessed electronically. (2) The regulations may make provision for and in relation to the following — (a) the giving of a direction, order, notice or other document required or permitted to be given under this Act (including giving by electronic means); (b) the time at which the direction, order, notice or document is taken to have been given; (c) the means of satisfying a requirement under this Act in relation to a document in writing (for example, a requirement that the original of a document be given or that a document be signed) if the document is given by electronic means. (3) This section applies to a requirement or permission to give a document whether the expression “give”, “send” or “serve”, or any other word or expression, is used. [Section 124C inserted: No. 24 of 2023 s. 86.] ##### 124D. Fixing notices, orders, directions and other documents on or near vessels (1) If a person is required or permitted under this Act to give a direction, order, notice or other document to the master or owner of a vessel or a person who has or had possession or control of a vessel, but that cannot be conveniently done, the document is effectively given if it is — (a) given to the owner of the vessel; or (b) fixed in a prominent place on or near the vessel. (2) This section applies to a requirement or permission to give a document whether the expression “give”, “send” or “serve”, or any other word or expression, is used. [Section 124D inserted: No. 24 of 2023 s. 86.] ##### 124E. Making certain things publicly available A requirement under this Act to make a notice or other thing publicly available may be satisfied by it being published on the Department’s website. [Section 124E inserted: No. 24 of 2023 s. 86.] ##### 124F. Application of *Criminal and Found Property Disposal Act 2006* The Department is a prescribed agency for the purposes of the *Criminal and Found Property Disposal Act 2006*. [Section 124F inserted: No. 24 of 2023 s. 86.] ##### 124FA. Approved forms (1) The chief executive officer may approve forms for use under this Act. (2) A certificate that is prescribed for a purpose under the *Road Traffic Act 1974* is taken to be the form of a certificate approved under subsection (1) for a corresponding purpose under this Act. (3) A form approved under subsection (1) may apply or adopt a form approved or prescribed under the *Road Traffic Act 1974* (other than a prescribed certificate referred to in subsection (2)) for use for a corresponding purpose under this Act. (4) A form referred to in subsection (2) or (3) may be used even if the form is not modified in any way, including not modified to refer to a provision of this Act relating to the corresponding purpose for which it is used. (5) The chief executive officer must make forms approved under subsection (1) (other than forms to which subsection (3) applies) available on the Department’s website. [Section 124FA inserted: No. 31 of 2023 s. 22.] ## Part 8A — Disqualification from holding or obtaining WA marine qualification [Heading inserted: No. 31 of 2023 s. 23(1).] [Heading inserted: No. 31 of 2023 s. 23(1).] ##### 124G. Terms used In this Part — alleged offence, in relation to a person, has the meaning given in section 124GA(1); disqualification notice has the meaning given in section 124GA(3); disqualification order, in relation to a person, means an order made by a court on convicting the person for an offence that disqualifies the person from holding or obtaining a WA marine qualification for the period specified in the order; disqualified, in relation to a person, means the person is disqualified from holding or obtaining a WA marine qualification by a disqualification order or under a disqualification notice. [Section 124G inserted: No. 31 of 2023 s. 23(1).] ### Division 2 — Disqualification notices [Heading inserted: No. 31 of 2023 s. 23(2).] ##### 124GA. Disqualification by inspector or police officer (1) This section applies if an inspector or police officer suspects on reasonable grounds that a person has committed an offence specified in the Table (the alleged offence). | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (2) For the purposes of subsection (1), reasonable grounds in relation to an offence against 75C(1), 75CA(1), 75DA(1) or 75DD(1) include the result of a breath analysis of a sample of a person’s breath or analysis of a person’s blood. (3) The inspector or police officer may give the person a notice (a disqualification notice) stating that the person is disqualified from holding or obtaining a WA marine qualification for a period of 2 months starting when the notice is given to the person. See section 124GD for the period for which a disqualification notice is in effect. (4) A disqualification notice given to a person under subsection (3) must be given personally. (5) The inspector or police officer giving the disqualification notice to the person must write on it — (a) the time and date the notice is given to the person; and (b) the time and date the period of disqualification ends. [Section 124GA inserted: No. 31 of 2023 s. 23(2).] ##### 124GB. Requirements for disqualification notice A disqualification notice given to a person must — (a) specify the grounds on which the notice is given; and (b) identify the time and date on which the alleged offence was committed; and (c) identify where the alleged offence was committed; and (d) describe the alleged offence with reasonable clarity; and (e) identify the offence, or offences, that the person is suspected of committing; and (f) state that the person may be able to apply to a court under section 124GH for an order revoking the disqualification notice in certain circumstances. [Section 124GB inserted: No. 31 of 2023 s. 23(2).] ##### 124GC. Limitation on giving disqualification notice An inspector or police officer cannot give a disqualification notice to a person in relation to an alleged offence more than 10 days after the later of the following days — (a) the day the alleged offence was committed; (b) if a sample of the alleged offender’s blood was taken under section 75EH, 75EI, 75EN or 75EO in relation to the commission of the alleged offence — the day on which an inspector or police officer receives information about the result of the analysis of the sample. [Section 124GC inserted: No. 31 of 2023 s. 23(2).] ##### 124GD. Period of disqualification under disqualification notice A disqualification notice given to a person has effect for the period — (a) starting when the notice is given to the person; and (b) ending on the day that is 2 months after the day on which it is given to the person, unless the notice is revoked earlier. [Section 124GD inserted: No. 31 of 2023 s. 23(2).] ##### 124GE. Amendment of disqualification notice An inspector or police officer may, by written notice given to a person to whom a disqualification notice has been given, amend the disqualification notice to correct an error in the notice. [Section 124GE inserted: No. 31 of 2023 s. 23(2).] ##### 124GF. Particulars of disqualification notice given to chief executive officer If an inspector or police officer gives a person a disqualification notice, or a notice amending a disqualification notice under section 124GE, the inspector or police officer must ensure that particulars of the notice are sent to the chief executive officer as soon as practicable after giving the notice. [Section 124GF inserted: No. 31 of 2023 s. 23(2).] ##### 124GG. Revocation of disqualification notice by inspector or police officer (1) An inspector or police officer must immediately revoke a disqualification notice given to a person in relation to an alleged offence if — (a) the inspector or police officer becomes aware that the breath analysing equipment used to conduct a breath analysis of a sample of the person’s breath in connection with the offence was faulty at the time of the analysis; or (b) a charge for the offence has not been laid within 1 month after the day on which the notice was given; or (c) a charge for the offence is discontinued. (2) The inspector or police officer who revokes a disqualification notice under subsection (1) must, as soon as practicable after the revocation, ensure that notice of the revocation is given to — (a) the person to whom the disqualification notice was given; and (b) the chief executive officer. [Section 124GG inserted: No. 31 of 2023 s. 23(2).] ##### 124GH. Court may order revocation of disqualification notice (1) A person may apply to the Magistrates Court or, if the person is under 18 years of age, to the Children’s Court, for an order revoking a disqualification notice given to the person on the grounds that there are exceptional circumstances that justify the revocation. (2) An application made under subsection (1) must — (a) include particulars of the exceptional circumstances that the applicant alleges justify revoking the notice; and (b) be given to the chief executive officer at least 14 days before it is heard and determined. (3) If the disqualification notice was issued by an inspector, the chief executive officer is entitled to be heard on the application. (4) If the disqualification notice was issued by a police officer, the Commissioner of Police is entitled to be heard on the application. (5) The court may make an order directing that the disqualification notice be revoked from a specified day if the court is satisfied that there are exceptional circumstances that justify revoking the notice. (6) If the court makes an order directing that a disqualification notice issued by a police officer is revoked, the court must ensure a copy of the order is given to the chief executive officer. [Section 124GH inserted: No. 31 of 2023 s. 23(2).] ##### 124GI. Disqualification notice automatically revoked on acquittal or dismissal of charge (1) A disqualification notice given to a person in relation to an alleged offence is revoked if a court — (a) acquits the person of the offence; or (b) dismisses a charge for the offence. (2) If a disqualification notice is revoked under this section, the court must ensure that information about the revocation is sent to the chief executive officer. [Section 124GI inserted: No. 31 of 2023 s. 23(2).] ##### 124GJ. Period of disqualification under disqualification notice to be taken into account in sentencing (1) This section applies if a court convicts a person of an offence to which a disqualification notice relates. (2) When making an order disqualifying the person from holding or obtaining a WA marine qualification, the court must take into account the period of disqualification that applies to the person under the disqualification notice. [Section 124GJ inserted: No. 31 of 2023 s. 23(2).] ### Division 3 — Provisions relating to disqualification orders by court [Heading inserted: No. 31 of 2023 s. 23(3).] ##### 124GK. Application of Division This Division applies if a court sentencing a person for an offence makes a disqualification order in relation to the person. [Section 124GK inserted: No. 31 of 2023 s. 23(3).] ##### 124GL. Notifying chief executive officer of disqualification order The court must ensure that the following information about a disqualification order is given to the chief executive officer — (a) details of the order; (b) details of the offence to which the disqualification relates; (c) any other information prescribed for this section. [Section 124GL inserted: No. 31 of 2023 s. 23(3).] ##### 124GM. Removal of disqualification (1) A disqualified person may apply to a court for an order removing the disqualification. (2) However, the person cannot apply before the end of the following period, starting on the day on which the disqualification took effect — (a) if the disqualification is for no more than 6 years — 3 years; (b) if the disqualification is for more than 6 years but no more than 20 years — one‑half of the period of the disqualification; (c) if the disqualification is for more than 20 years or is permanent — 10 years. (3) The application must be made to — (a) if the disqualification was imposed by the Supreme Court — the Supreme Court; or (b) in any other case — the District Court. (4) The court may make an order removing the disqualification from the day specified in the order or refuse the application. (5) In deciding the application, the court must have regard to the following matters — (a) the safety of the public generally; (b) the character of the applicant; (c) the circumstances of the case; (d) the nature of the offence or offences giving rise to the disqualification; (e) the conduct of the applicant subsequent to the disqualification. [Section 124GM inserted: No. 31 of 2023 s. 23(3).] ##### 124GN. Removal of disqualification: additional provisions (1) A court to which an application is made under section 124GM may order the applicant to pay all or part of the costs of an application. (2) The chief executive officer has a right to be heard in proceedings for the application. (3) If the court refuses the application, a further application cannot be heard during the period of 1 year after the day of refusal. (4) This section and section 124GM do not limit or otherwise affect any right a person may have to appeal against a disqualification order. [Section 124GN inserted: No. 31 of 2023 s. 23(3).] ##### 124GO. Notifying chief executive officer of disqualification order A court ordering that the disqualification of a person be removed must ensure that the following information is given to the chief executive officer — (a) details of the order; (b) details of the disqualification; (c) any other information prescribed for this section. [Section 124GO inserted: No. 31 of 2023 s. 23(3).] ### Division 4 — Effect of disqualifications and other matters [Heading inserted: No. 31 of 2023 s. 23(3).] ##### 124GP. Effect of disqualification (1) A WA marine qualification held by a person is suspended while the person is disqualified. (2) A WA marine qualification obtained by a person while the person is disqualified has no effect. (3) Subsection (2) applies whether or not the person applied for the WA marine qualification before becoming disqualified. (4) This section — (a) does not operate to extend the period for which a WA marine qualification may be valid or effective beyond the time it would otherwise expire; and (b) does not affect the cancellation of a WA marine qualification under regulations referred to in section 124GQ(a). [Section 124GP inserted: No. 31 of 2023 s. 23(3).] ##### 124GQ. Other effects of disqualification The regulations may provide — (a) for the circumstances in which a WA marine qualification held by a person who is disqualified under a disqualification order may be cancelled; and (b) if a person is disqualified from holding or obtaining a marine qualification under the law of another Australian jurisdiction or an overseas jurisdiction, that — (i) a WA marine qualification held by the person is suspended while the disqualification is in effect or may be cancelled; or (ii) the person cannot obtain a WA marine qualification. [Section 124GQ inserted: No. 31 of 2023 s. 23(3).] ##### 124GR. Calculating period of disqualification Any of the following periods do not count towards a period of disqualification for a person — (a) a period during which the person is in custody serving a sentence of imprisonment; (b) if the person appeals against the conviction or sentence that gave rise to the disqualification — the period starting when the person commences the appeal and ending when the appeal is decided, dismissed or withdrawn. [Section 124GR inserted: No. 31 of 2023 s. 23(3).] ##### 124GS. Navigating certain vessels when disqualified from holding or obtaining WA marine qualification relevant vessel means a vessel for which a WA marine qualification is required to navigate it under this Act. (2) A person commits an offence if the person navigates a relevant vessel while the person is disqualified. (a) for a first offence, imprisonment for 12 months or a fine of not less than $400 or more than $2 000; (b) for a second or subsequent offence, imprisonment for 18 months or a fine of not less than $1 000 or not more than $4 000. (3) A court sentencing a person for an offence against subsection (2) must order that the person is disqualified from holding or obtaining a WA marine qualification for a period of not less than 3 months or more than 9 months. (4) A period of disqualification ordered under subsection (3) is cumulative upon — (a) another period for which the person is disqualified; or (b) if a WA marine qualification held by the person is suspended when the order is made — the period of suspension. (5) It is a defence to a charge of an offence against subsection (2) for the person charged to prove that the person — (a) held an exemption issued by the chief executive officer under this Act from holding a WA marine qualification; and (b) was navigating the vessel in accordance with the exemption at the time the alleged offence was committed. (6) A police officer may arrest a person for an offence against subsection (2) without a warrant. [Section 124GS inserted: No. 31 of 2023 s. 23(3).] ## Part 9 — Legal proceedings [Heading amended: No. 24 of 2023 s. 87.] ### Division 1 — Evidentiary provisions for alcohol‑related offences and drug‑related offences #### Subdivision 1 — Preliminary ##### 124H. Terms used alcohol‑related offence has the meaning given in section 124HC(1); approved expert has the meaning given in the *Road Traffic Act 1974* section 70(7); authorised drug tester has the meaning given in section 75EB(1); authorised operator has the meaning given in section 75EA(1); certificate means a certificate in the form approved under section 124FA(1); drug‑related offence has the meaning given in section 124HI(1); material time has the meaning given in — (a) in relation to an alcohol‑related offence — section 124HC(2); or (b) in relation to a drug‑related offence — section 124HI(2); operate, a vessel, has the meaning given in section 75AA(1); preliminary breath test has the meaning given in section 75E; preliminary oral fluid test has the meaning given in section 75E; prescribed sample taker has the meaning given in section 75E; sampling equipment means the equipment referred to in the *Road Traffic Act 1974* section 70 as the prescribed equipment that must be used for taking blood samples for the purposes of Part 3B. [Section 124H inserted: No. 31 of 2023 s. 24(1).] ##### 124HA. Certificate is evidence of stated facts (1) This section applies in relation to a certificate — (a) purporting to be signed by a person; and (b) stating any of the matters that, under this Division, the person may certify. (2) In a proceeding for an alcohol‑related offence or a drug‑related offence, the certificate is evidence of the facts stated in the certificate without proof of the person’s signature. [Section 124HA inserted: No. 31 of 2023 s. 24(1).] ##### 124HB. No limit on other evidence in proceedings (1) Nothing in this Division is to be construed as limiting the evidence that may be introduced in a proceeding for an offence against this Act or another written law that is relevant to whether or not a person is guilty of the offence. (2) Subsection (1) applies in relation to evidence regardless of whether the evidence is in addition to, or independent of, any evidence that is provided for under this Division. [Section 124HB inserted: No. 31 of 2023 s. 24(1).] #### Subdivision 2 — Evidence in proceedings for alcohol‑related offences ##### 124HC. Alcohol‑related offence and material time (1) An alcohol‑related offence is — (a) an offence against a section specified in the Table; or (b) an offence against this Act or another written law if either of the following matters is relevant to the proceeding — (i) whether or not a person was under the influence of alcohol at a material time; (ii) the extent to which a person was under the influence of alcohol at a material time. (2) The material time, in relation to a person about whom evidence is given for an alcohol‑related offence, is — (a) for an offence mentioned in subsection (1)(a) — the time at which a person is alleged to have navigated, or attempted to operate, a vessel while the person had a particular BAC; (b) for an offence mentioned in subsection (1)(b) — the material time mentioned in subsection (1)(b)(i) or (ii) in relation to the offence. [Section 124HC inserted: No. 31 of 2023 s. 24(1).] ##### 124HD. Evidence in proceeding for alcohol‑related offence (1) Evidence about any of the following matters may be given in a proceeding for an alcohol‑related offence — (a) the provision of a sample of breath by a person for breath analysis, if the sample is provided within 4 hours after the material time; (b) the analysis of the sample of the person’s breath by breath analysing equipment operated by an authorised operator; (c) the manner in which the breath analysing equipment indicated a result of the breath analysis; (d) the result indicated by the breath analysing equipment; (e) the taking of a sample of blood from the person by a prescribed sample taker, if the sample is taken — (i) within 4 hours after the material time; or (ii) if the sample is taken in accordance with a requirement under section 75EO — within 12 hours after the material time; (f) the analysis of the sample of the person’s blood for alcohol by an analyst; (g) the result of the analysis of the sample. (2) Subsection (1) does not limit the admissibility of other evidence that may be given in the proceeding. [Section 124HD inserted: No. 31 of 2023 s. 24(1).] ##### 124HE. Evidence of authorised operator of breath analysing equipment In a proceeding for an alcohol‑related offence, evidence given by an authorised operator about any of the following is evidence of that fact — (a) the device operated by the authorised operator to conduct an analysis of a breath sample was breath analysing equipment; (b) the authorised operator operated the breath analysing equipment — (i) in the prescribed manner; and (ii) in compliance with the regulations relating to the type of breath analysing equipment; (c) when operated, the breath analysing equipment indicated a result in the prescribed manner. [Section 124HE inserted: No. 31 of 2023 s. 24(1).] ##### 124HF. Certificate of authorised operator of breath analysing equipment For the purposes of section 124HA, the matters that a person who is an authorised operator may certify in a certificate are that, on a specified date or at a specified time — (a) a specified person provided a sample of breath for breath analysis; and (b) the person was an authorised operator; and (c) the sample of breath provided was analysed using a device that was breath analysing equipment that was operated by the person; and (d) the person used the breath analysing equipment in the prescribed manner and in accordance with the regulations relating to breath analysis conducted using that type of breath analysing equipment; and (e) at the conclusion of the breath analysis, the breath analysing equipment indicated a result in the prescribed manner; and (f) the result of the breath analysis was the specified result; and (g) in accordance with section 75EM, the person gave the specified person a written statement or statement printed by the breath analysing equipment referred to in that section. [Section 124HF inserted: No. 31 of 2023 s. 24(1).] ##### 124HG. Certificate of analyst relating to analysis of blood sample for alcohol For the purposes of section 124HA, the matters that a person who is an analyst may certify in a certificate are that, on a specified date or at a specified time — (a) the person was an analyst; and (b) the person received a sample of blood — (i) identified in the specified way; and (ii) identified as a sample taken from a specified person; and (c) the person analysed the sample for alcohol in accordance with the regulations, and (d) the result from the analysis was the specified BAC. For the purposes of paragraph (b)(i), a sample may be identified by a number on the container for the sample. [Section 124HG inserted: No. 31 of 2023 s. 24(1).] ##### 124HH. Proof of person’s BAC for certain offences (1) This section applies in a proceeding for an alcohol‑related offence referred to in section 124HC(1)(a). (2) In the absence of proof to the contrary, the accused is taken to have a particular BAC at the time the accused navigated, or attempted to operate, a vessel if it is proved the person had that BAC — (a) within 4 hours after the time of the navigation or attempted operation; or (b) if the proof of the person’s BAC relates to a sample of the person’s blood taken in accordance with a requirement imposed under section 75EO — within 12 hours after the time of the navigation or attempted operation. (3) Evidence that the accused consumed alcohol during the relevant period is not admissible to rebut the presumption created under subsection (2). (4) For the purposes of subsection (3), the relevant period is the period — (a) starting at the latest time it is alleged the accused navigated or attempted to operate a vessel; and (b) ending when the person provided the sample of breath, or the sample of the person’s blood was taken, which established proof of the person’s BAC. [Section 124HH inserted: No. 31 of 2023 s. 24(1).] #### Subdivision 3 — Evidence in proceedings for drug‑related offences ##### 124HI. Drug‑related offence and material time (1) A drug‑related offence is — (a) an offence against any of the sections specified in the Table; or (b) an offence against this Act or another written law if either of the following matters is relevant to the proceeding — (i) whether or not a person was under the influence of, or impaired by, a drug at a material time; (ii) the extent to which a person was under the influence of, or impaired by, a drug at a material time. (2) The material time, in relation to a person about whom evidence for a drug‑related offence is given, is — (a) for an offence mentioned in subsection (1)(a) — the time at which a person is alleged to have navigated, or attempted to operate, a vessel while — (i) the person was under the influence of a drug; or (ii) the person was impaired by drugs; or (iii) a prescribed illicit drug was present in the person’s body; or (b) for an offence mentioned in subsection (1)(b) — the material time mentioned in subsection (1)(b)(i) or (ii) in relation to the offence. [Section 124HI inserted: No. 31 of 2023 s. 24(1).] ##### 124HJ. Evidence in proceedings for drug‑related offences (1) Evidence about the following matters may be given in a proceeding for a drug‑related offence — (a) the taking of a sample of blood from a person by a prescribed sample taker, if the sample is taken — (i) within 4 hours after the material time; or (ii) if the sample is taken in accordance with a requirement imposed under section 75EO — within 12 hours after the material time; (b) the analysis of the sample of the person’s blood for drugs by a drugs analyst; (c) the result obtained from the analysis; (d) the behaviour, condition or appearance of a person at the material time; (e) the behaviour or a condition associated with a person who has consumed or used a particular drug or combination of drugs; (f) the usual effect that the behaviour or a condition associated with a person who has consumed or used a particular drug or combination of drugs has on a person’s capacity to have proper control of a vessel; (g) the provision of a sample of oral fluid by the person, if the sample is provided within 4 hours after the material time; (h) the analysis of the sample of the person’s oral fluid for drugs by a drugs analyst; (i) the result obtained from the analysis. (2) Subsection (1) does not limit the admissibility of other evidence that may be given in the proceeding. [Section 124HJ inserted: No. 31 of 2023 s. 24(1).] ##### 124HK. Certificate of authorised drug tester For the purposes of section 124HA, the matters that a person who is an authorised drug tester may certify in a certificate are that, on a specified date or at a specified time — (a) the person was an authorised drug tester; and (b) the person — (i) took a sample of oral fluid from a specified person on a specified date and at a specified time; and (ii) identified the sample in the specified way; and (c) the sampling equipment the person used to take the sample — (i) is identified in the specified way; and (ii) was given to the person by a specified person; and (iii) was received in the specified condition; and (d) the person took the sample in accordance with the regulations. For the purposes of paragraph (c)(i), a sample may be identified by a number on the container for the sample. [Section 124HK inserted: No. 31 of 2023 s. 24(1).] ##### 124HL. Certificate of drugs analyst relating to analysis of oral fluid or blood sample for drugs For the purposes of section 124HA, the matters that a person who is a drugs analyst may certify in a certificate are that, on a specified date or at a specified time — (a) the person was a drugs analyst; and (b) the person received a sample of oral fluid or blood — (i) identified in the specified way; and (ii) identified as a sample taken from a specified person; and (c) the person analysed the sample for drugs; and (d) the analysis produced the specified result. For the purposes of paragraph (b)(i): a sample may be identified by a number on the container for the sample. [Section 124HL inserted: No. 31 of 2023 s. 24(1).] ##### 124HM. Certificate of approved expert relating to usual effect of particular drugs For the purposes of section 124HA, the matters that a person who is an approved expert may certify in a certificate are — (a) that, on a specified date or at a specified time, the person was an approved expert; and (b) a description of the usual behaviour, condition or appearance associated with a person who has consumed or used a specified drug or combination of drugs; and (c) a description of the usual effect that the behaviour or a condition associated with a person who has consumed or used a specified drug or combination of drugs has on a person’s capacity to have proper control of a vessel. [Section 124HM inserted: No. 31 of 2023 s. 24(1).] ##### 124HN. Certificate of inspector or police officer For the purposes of section 124HA, the matters that a person who is an inspector or police officer may certify in a certificate are that, on a specified date or at a specified time — (a) a specified person who navigated, or attempted to operate, a vessel behaved in a specified way or had a specified condition or appearance; and (b) the person conducted an assessment of drug impairment on a specified person; and (c) the person conducted the assessment in accordance with the regulations; and (d) during the assessment, the specified person behaved in a specified way or had a specified condition or appearance. [Section 124HN inserted: No. 31 of 2023 s. 24(1).] ##### 124HO. Proof of presence of drugs (1) This section applies in a proceeding for an offence specified in the Table. (2) In the absence of evidence to the contrary, the presence of a drug in a person’s body is taken to be proved if it is proved that the drug was present in the person’s body — (a) within 4 hours after the material time; or (b) if the presence of the drug is proved in relation to a sample of the person’s blood taken in accordance with a requirement imposed under section 75EO — within 12 hours after the material time. [Section 124HO inserted: No. 31 of 2023 s. 24(1).] #### Subdivision 4 — Other evidentiary provisions ##### 124HP. Certificate of chief executive officer, Commissioner of Police or CEO of Chemistry Centre (WA) (1) The chief executive officer may issue a certificate certifying, on a specified date or during a specified period — (a) that a specified person was an inspector; and (b) as to whether or not the person was competent to operate breath analysing equipment or a drug testing device. (2) The Commissioner of Police may issue a certificate certifying that, on a specified date or during a specified period — (a) a specified police officer was an authorised operator competent to operate breath analysing equipment; or (b) a specified police officer was an authorised drug tester competent to operate a drug testing device. (3) The chief executive officer of the Chemistry Centre (WA) may issue a certificate certifying that, on a specified date or during a specified period — (a) a specified person was an analyst; or (b) a specified person was a drugs analyst. (4) In any proceeding, a certificate referred to in subsection (1), (2) or (3), purporting to be signed by the person mentioned in that subsection, is evidence of the facts stated in the certificate without proof of the person’s signature. [Section 124HP inserted: No. 31 of 2023 s. 24(1).] ##### 124HQ. Certificate of technologist who prepared sampling equipment approved body means a body referred to in the *Road Traffic Act 1974* section 70 as a body approved by the Minister in relation to technologists who prepare sampling equipment; prescribed items means items referred to in the *Road Traffic Act 1974* section 70 as the prescribed items that must comprise sampling equipment; technologist has the meaning given in the *Road Traffic Act 1974* section 70(7). (2) For the purposes of section 124HA, the matters that a person who is a technologist of an approved body may certify in a certificate are that — (a) sampling equipment identified in the certificate comprises the prescribed items; and (b) the technologist prepared the prescribed items; and (c) the prescribed items are sterile and fit for the purpose of taking a sample of blood for analysis if used for that purpose no later than a specified date. For the purposes of paragraph (a), sampling equipment may be identified by a serial number. [Section 124HQ inserted: No. 31 of 2023 s. 24(1).] ##### 124HR. Certificate of prescribed sample taker For the purposes of section 124HA, the matters that a person who is a prescribed sample taker may certify in a certificate are that, on a specified date or at a specified time — (a) the person was a prescribed sample taker; and (b) the person — (i) took a sample of blood from a specified person on a specified date and at a specified time; and (ii) identified the sample in the specified way; and (c) the sampling equipment the person used to take the sample — (i) is identified in the specified way; and (ii) was given to the person by a specified person; and (iii) was received in the specified condition; and (d) the person took the sample in accordance with the regulations. Examples for this subsection: 1. For the purposes of paragraph (b)(ii), a sample may be identified by a number on the container for the sample. 2. For the purposes of paragraph (c)(i), sampling equipment may be identified by a serial number. [Section 124HR inserted: No. 31 of 2023 s. 24(1).] ##### 124HS. Evidence of delivery of blood or oral fluid samples prescribed particulars means the prescribed particulars of the delivery of a sample to an analyst or drugs analyst referred to in the *Road Traffic Act 1974* section 70B(1). (2) This section applies in a proceeding for — (a) an alcohol‑related offence referred to in section 124HC(1)(a); or (b) a drug‑related offence referred to in section 124HI(1)(a). (3) For the purposes of section 124HA, a person who takes delivery of a sample delivered to an analyst or drugs analyst may certify in a certificate the prescribed particulars of the delivery of the sample. [Section 124HS inserted: No. 31 of 2023 s. 24(1).] ##### 124HT. Procedural requirements for admissibility of particular certificate evidence (1) This section relates to evidence in the form of a certificate of — (a) an analyst under section 124HG; or (b) a drugs analyst under section 124HL; or (c) an approved expert under section 124HM; or (d) a person who takes delivery of a sample delivered to an analyst or a drugs analyst under section 124HS. (2) The certificate is not admissible as evidence in a proceeding unless — (a) a copy of the certificate is served on the accused at least 28 days before the day on which the certificate is adduced in the proceeding; or (b) it is adduced in the proceeding by, or with the consent of, the accused. (3) The accused cannot challenge or call into question any matter set out in a certificate admitted under subsection (2) unless — (a) written notice of the accused’s intention to challenge or question the matter is served on the prosecutor at least 14 days before the day on which the certificate is produced; or (b) the court, in the interests of justice, gives the accused leave to challenge or question the matter. (4) A notice referred to in subsection (3)(a) must specify the matter that is to be challenged or called into question. [Section 124HT inserted: No. 31 of 2023 s. 24(1).] ##### 124HU. Evidence relating to preliminary oral fluid test, drug testing and preliminary breath test admissible in certain proceedings with consent (1) Evidence about a matter referred to subsection (2) is only admissible in a proceeding for an offence if — (a) the proceeding is for an offence specified in the Table; or | s. 75H(1) | Failure to comply with requirement: preliminary breath test, preliminary oral fluid test or boarding or moving vessel | | s. 75GF(5) | Prohibiting person from navigating vessel for 24 hours if prescribed illicit drug present | (b) for a proceeding for any other offence against this Act or another written law — the evidence is adduced in the proceeding by, or with the consent of, the person the subject of the evidence. (2) For the purposes of subsection (1), the matters are — (a) that a person provided a sample of breath for a preliminary breath test and any indication provided by the preliminary breath testing device used for the test; and (b) that a person provided a sample of oral fluid for a preliminary oral fluid test and any indication provided by the preliminary oral fluid testing device used for the test; and (c) the result of the drug testing of a sample of a person’s oral fluid by a drug testing device. (3) Evidence that a person provided a sample of the person’s oral fluid for drug testing is only admissible in a proceeding for an offence if — (a) the proceeding is for a drug‑related offence; or (b) the proceeding is for an offence specified in the Table to subsection (1)(a); or (c) the evidence is adduced by, or with the consent of, the person the subject of the evidence. [Section 124HU inserted: No. 31 of 2023 s. 24(1).] ### Division 2 — Provisions relating to sentencing for dangerous navigation and alcohol and drug related offences [Heading inserted: No. 31 of 2023 s. 24(2).] ##### 124I. Term used: young person young person has the meaning given in the *Young Offenders Act 1994* section 3(1). [Section 124I inserted: No. 31 of 2023 s. 24(2).] ##### 124IA. Limitation on period for which previous offences taken into account (1) This section applies if a person is convicted of an offence against Part 3A or 3B and the penalty for the offence varies according to whether the person has been previously convicted for another offence. (2) If a person’s conviction for a previous offence was recorded more than 20 years before the commission of the offence for which the person is being sentenced, the previous offence must not be taken into account in determining the penalty to be imposed. [Section 124IA inserted: No. 31 of 2023 s. 24(2).] ##### 124IB. Sentencing for particular offences: option for community based order or youth community based order (1) This section applies if a court is sentencing a person who has been convicted of — (a) a first offence against a section mentioned in Table 1; or Table 1 — Offences | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | (b) any offence against a section mentioned in Table 2. Table 2 — Offences | s. 75H(1) | Failure to comply with requirement: preliminary breath test, preliminary oral fluid test or boarding or moving vessel | (2) The court may, instead of imposing a fine — (a) order the release of the person; and (b) impose a community based order under the *Sentencing Act 1995* with at least a community service requirement as a primary requirement of the order. (3) If the offender is a young person, the court may, instead of imposing a fine, make a youth community based order under the *Young Offenders Act 1994*, imposing at least community work conditions on the offender. (4) Subsection (3) applies subject to sections 50, 50A and 50B of the *Young Offenders Act 1994*. [Section 124IB inserted: No. 31 of 2023 s. 24(2).] ##### 124IC. Sentencing for particular offences if community based order or intensive supervision order imposed (a) a court is sentencing a person who has been convicted of — (i) an offence against section 75HG(1) (Failure to comply with drug testing requirement: BAC of 0.05 or above); or (ii) a second or subsequent offence against a section specified in the Table; | s. 75HB(1) | Failure to comply with requirement: breath analysis, blood sample or stop vessel or navigate to specified place | and (b) the court orders the release of the offender; and (c) the court imposes — (i) a community based order or an intensive supervision order under the *Sentencing Act 1995*; or (ii) if the offender is a young person — a youth community based order or an intensive youth supervision order under the *Young Offenders Act 1994*. (2) If the court imposes an order referred to in subsection (1)(c)(i), the court must impose at least a community service requirement as a primary requirement of the community based order or intensive supervision order. (3) If the court imposes an order referred to in subsection (1)(c)(ii), the court must impose community work conditions on the offender as part of the youth community based order or intensive youth supervision order. [Section 124IC inserted: No. 31 of 2023 s. 24(2).] ##### 124ID. Pre‑sentence report required for sentencing for navigation while impaired by drugs A court sentencing a person who has been convicted of an offence against section 75CD(1) (Navigation of vessel while impaired by drugs) must order a pre‑sentence report about the offender under the *Sentencing Act 1995* Part 3 Division 3. [Section 124ID inserted: No. 31 of 2023 s. 24(2).] ##### 124IE. Sentencing for first offence of navigation while impaired by drugs or failure to comply with drug impairment assessment (1) This section applies if a court is sentencing a person who has been convicted of a first offence against — (a) section 75CD(1) (Navigation of vessel while impaired by drugs); or (b) section 75HE(1) (Failure to comply with requirements relating to assessment of drug impairment). (2) Despite the *Sentencing Act 1995* section 39(3) and (4), the court must, instead of or in addition to imposing a fine — (a) order the release of the person; and (b) impose a community based order under the *Sentencing Act 1995* with at least a programme requirement as a primary requirement of the order. (3) If the offender is a young person, the court must, instead of or in addition to imposing a fine, make a youth community based order under the *Young Offenders Act 1994*, imposing at least attendance conditions on the offender. (4) Subsection (3) applies — (a) subject to sections 50, 50A and 50B of the *Young Offenders Act 1994*; and (b) despite section 74 of that Act. [Section 124IE inserted: No. 31 of 2023 s. 24(2).] ##### 124IF. Sentencing for second or subsequent offence of navigation while impaired by drugs or failure to comply with drug impairment assessment (1) This section applies if a court is sentencing a person who has been convicted of a second or subsequent offence against — (a) section 75CD(1) (Navigation of vessel while impaired by drugs); or (b) section 75HE(1) (Failure to comply with requirements relating to assessment of drug impairment). (2) The court must, instead of or in addition to imposing a fine, order the release of the person and impose either of the following under the *Sentencing Act 1995* — (a) a community based order with at least a supervision requirement and a programme requirement as primary requirements of the order; or (b) an intensive supervision order with at least a programme requirement as a primary requirement of the order. (3) Subsection (2) applies despite the *Sentencing Act 1995* section 39(3) and (4). (4) If the offender is a young person, the court must, instead of or in addition to imposing a fine — (a) make a youth community based order or an intensive youth supervision order under the *Young Offenders Act 1994*; and (b) impose at least attendance conditions and supervision conditions on the offender. (5) Subsection (4) applies — (a) subject to sections 50, 50A and 50B of the *Young Offenders Act 1994*; and (b) despite section 74 of that Act. (6) Subsections (2) and (4) do not apply if the court imposes a custodial sentence on the offender. [Section 124IF inserted: No. 31 of 2023 s. 24(2).] ##### 124IG. Mandatory disqualification (1) This section applies if this Act requires a court sentencing a person for an offence to disqualify the offender from holding or obtaining a WA marine qualification for — (a) a specified period, or permanently, in relation to the offence; or (b) a period not less than a specified minimum period in relation to the offence; or (c) a period not less than a specified minimum period, and no more than a specified maximum period, in relation to the offence. (2) Regardless of any sentence the court imposes on the offender for the offence, the court — (a) must disqualify the offender for the specified period, or at least the specified minimum period and more than the specified maximum period; and (b) cannot reduce the period of disqualification other than by the period the offender was disqualified by a disqualification notice given to the offender under section 124GA in relation to the offence. (3) Without limiting subsection (2)(b), the specified period of disqualification cannot be reduced in mitigation. (4) This section applies despite any other written law. [Section 124IG inserted: No. 31 of 2023 s. 24(2).] ##### 124IH. Minimum fines Without limiting the *Sentencing Act 1995*, and despite any other written law, a fine provided for an offence under Part 3A or Part 3B of this Act that is a minimum penalty (however expressed) cannot be reduced in mitigation. [Section 124IH inserted: No. 31 of 2023 s. 24(2).] ### Division 3 — General matters [Heading inserted: No. 31 of 2023 s. 25.] ##### 125. Evidence of documents and proof of signature (1) All documents whatever purporting to be issued or written under this Act by or under the direction of or with the authority of the Minister, the Department or the chief executive officer and purporting to be signed by a person acting with the authority of the Minister, the Department or the chief executive officer, as the case may be, shall be admissible as evidence and be deemed, on production by any person, to have been so written and so signed until evidence to the contrary is shown. (2) In this section, document includes certificate, permit, licence, exemption, dispensation, and register. (3) A document required by or under this Act to be executed in the presence of or attested by a witness may be proved by the evidence of any person who is able to bear witness to the facts of execution or attestation without calling any attesting witness. [Section 125 amended: No. 35 of 1990 s. 21.] ##### 125A. Limitation period for prosecutions A prosecution for an offence under this Act or any subsidiary legislation under this Act must be commenced within 3 years after the date on which the offence was allegedly committed. [Section 125A inserted: No. 84 of 2004 s. 80; amended: No. 24 of 2023 s. 88.] ##### 126. Admissibility of documents in evidence (1) Where a document is by this Act declared to be admissible in evidence, it shall, on production from the proper custody, be admissible in evidence in any court, or before any person having by law or consent of parties authority to receive evidence, and, subject to all just exceptions, shall be evidence of the matters stated therein in pursuance of this Act or in pursuance of any duty under this Act. (2) A copy of, or extract from, any such document shall also be admissible in evidence if — (a) it is proved to be an examined copy or extract; or (b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original document was entrusted, and that officer shall, upon payment of the prescribed fee, furnish a copy or extract so certified to any person applying for it. (3) The provisions of this section shall be without prejudice to those of the *Evidence Act 1906*. ##### 127. Service of summons and process (1) Service of any summons or other process in any legal proceeding under this Act shall be deemed good service if made — (a) personally on the person to be served; or (b) at the person’s last known place of abode or business; or (c) on board any vessel to which the person belongs and accompanied with a statement of the purport thereof, to the person being or appearing to be the master of the vessel. (2) In subsection (1) — legal proceeding under this Act includes any proceeding under the *State Administrative Tribunal Act 2004* in a matter commenced by an application under this Act for a review. [Section 127 amended: No. 55 of 2004 s. 1312; No. 24 of 2023 s. 89.] [**128.** Deleted: No. 24 of 2023 s. 90.] ##### 129. Averments relating to vessels In a prosecution under this Act, an averment in the charge as to 1 of the following matters is, in the absence of evidence to the contrary, sufficient evidence of the matter — (a) that a person is, or was at a specified time, the owner, master or operator of a specified vessel; (b) that a specified vessel is, or was at a specified time, a domestic commercial vessel, a pleasure vessel or a prescribed vessel; (c) that a specified vessel is not, or was not at a specified time, exempt from a specified provision of this Act; (d) that a specified vessel is, or was at a specified time, registered or licensed or required to be registered or licensed under an Act; (e) that a vessel is or was in or used in navigable waters. [Section 129 inserted: No. 24 of 2023 s. 91.] ##### 130. Averment relating to qualifications of crew In a prosecution under this Act relating to the crewing of a vessel, an averment in the charge that a person is or was, or is not or was not, the holder of a particular certificate or qualification or a particular class of certificate or qualification is sufficient evidence of that fact in the absence of evidence to the contrary. [Section 130 amended: No. 84 of 2004 s. 80; No. 24 of 2023 s. 92.] ##### 131. Place where act committed For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, either — (a) in the place in which it actually was committed or arose; or (b) in any place in which the offender or person complained against is. ##### 132. Proceedings by way of infringement notice (1) An authorised person who believes on reasonable grounds that a person has committed an offence under this Act, in respect of which offence a modified penalty is prescribed, may serve, by personal delivery to the person or by posting to him at his address ascertained from him at or about the time that offence is believed to have been committed, a notice (an ***infringement notice***) in the prescribed form informing the person that if he does not wish to be prosecuted for the alleged offence in a court he may pay to a designated officer, not being a designated officer who is the authorised person serving that notice, within a period of 28 days after the date of service of that notice, the amount of the modified penalty. (2) If the alleged offence was allegedly committed in connection with a vessel, an authorised person may — (a) if the identity of the alleged offender is not known and cannot immediately be ascertained — address the infringement notice concerned to, and serve it on, the owner of the vessel concerned within a period of 30 days after the date on which the alleged offence is believed to have been committed; or (b) if the identity of the alleged offender is not known and cannot immediately be ascertained and the identity of the owner of the vessel is not known and cannot be ascertained after reasonable enquiry — address the infringement notice concerned to the owner of that vessel, without naming him or stating his address, and serve that infringement notice by attaching it to that vessel or by leaving it in or on the vessel within the period referred to in paragraph (a). (3) When, under subsection (2) an infringement notice is addressed to and served on the owner of a vessel within the period referred to in paragraph (a) of that subsection or addressed to the owner of a vessel and served by attaching it to the vessel or leaving it in or on the vessel within that period, then, unless within a period of 21 days after the date of service of the infringement notice — (a) the modified penalty concerned is paid; or (b) the owner of the vessel — (i) informs an authorised person of the identity and address of the person who was in charge of the vessel; or (ii) satisfies an authorised person that the vessel had been stolen or unlawfully taken, or was being unlawfully used, at the time when the alleged offence is believed to have been committed, the owner of the vessel is, in the absence of proof to the contrary, deemed to be the person who was in charge of the vessel at the time when the alleged offence is believed to have been committed. (4) A person on whom an infringement notice is served — (a) may decline; or (b) if he fails to pay the modified penalty concerned within a period of 21 days after the date of that service, is deemed to have declined, to be dealt with under the provisions of this section. (5) An authorised person may, whether or not the modified penalty concerned has been paid, withdraw an infringement notice at any time within a period of 28 days after it is served by sending to the alleged offender a notice in the prescribed form signed by the authorised person and advising the alleged offender that the infringement notice has been withdrawn. (5A) An authorised person may not withdraw an infringement notice under subsection (5) if the authorised person served the infringement notice. (6) The amount of any modified penalty paid pursuant to an infringement notice which has been withdrawn under subsection (5) shall be refunded. (7) When a modified penalty has been paid pursuant to an infringement notice and the infringement notice has not been withdrawn under subsection (5), proceedings shall not be brought against any person in respect of the alleged offence specified in the infringement notice. (8) A person, other than the owner or person in charge of a vessel in respect of which an alleged offence is believed to have been committed, shall not remove an infringement notice relating to the alleged offence attached to or left in or on that vessel by an authorised person. (9) An infringement notice served under subsection (2) shall contain, *inter alia*, a short statement of the effect of subsection (3). (10) The Minister may by notice published in the *Gazette* designate a public service officer or class of public service officer, within the meaning of the *Public Sector Management Act 1994*, to receive payment of the amounts of modified penalties. (11) In this section, unless the context otherwise requires — alleged offence means offence referred to in subsection (1); alleged offender means person who is believed by the authorised person concerned to have committed an alleged offence; authorised person includes an inspector; designated officer means person designated under subsection (10). (12) In subsection (3) — person who was in charge of the vessel includes the person who was the driver, master, possessor, skipper, owner or user of the vessel or the person causing, permitting or suffering the vessel to be navigated, as the case requires. [Section 132 amended: No. 47 of 1993 s. 33(2); No. 32 of 1994 s. 19; No. 84 of 2004 s. 80; No. 2 of 2019 s 64; No. 24 of 2023 s. 93.] ##### 133. Onus on owner to identify person in charge of vessel (1) Any owner of a vessel and any person to whom for the time being the possession or control of a vessel may be entrusted shall, if required by an authorised person, give to the authorised person any information — (a) which it is in the owner’s or other person’s power to give; and (b) which may lead to the identification of the person who was in charge of the vessel at the time when an offence under this Act is alleged to have been committed. Penalty for this subsection: a fine of $3 000. (2) When an offence under this Act is alleged to have been committed in connection with a vessel and the identity of the person who was in charge of the vessel in respect of which that allegation is made is not known and cannot immediately be ascertained, an authorised person may, within a period of 30 days after the date on which that offence is alleged to have been committed, serve on the owner of that vessel a notice in the prescribed form containing particulars of that offence and requiring that owner to identify the person who was in charge of that vessel at the time when that offence is alleged to have been committed. (3) When, under the provisions of subsection (2), notice is served on the owner of a vessel within the period specified in that subsection then, unless within 21 days after the date of the service of the notice that owner — (a) informs an authorised person of the identity and address of the person who was in charge of the vessel; or (b) satisfies an authorised person that the vessel had been stolen or unlawfully taken, or was being unlawfully used, at the time when the offence concerned is alleged to have been committed, that owner is, in the absence of proof to the contrary, deemed to be the person who was in charge of the vessel at the time when that offence is alleged to have been committed. (4) A notice served under subsection (2) shall contain, *inter alia*, a short statement of the effect of subsection (3). (5) In this section — authorised person includes — (a) an inspector; and (b) in relation to a suspected offence under Part 3A or Part 3B or section 124GS(2) — a police officer; person who was in charge of the vessel includes the person who was the driver, master, possessor, skipper, owner or user of the vessel or the person causing, permitting or suffering the vessel to be navigated, as the case requires. [Section 133 amended: No. 24 of 2023 s. 94; No. 31 of 2023 s. 26.] [**134.** Deleted: No. 24 of 2023 s. 95.] ## Part 10 — Repeal and transitional provisions [Heading inserted: No. 24 of 2023 s. 96.] ### Division 1 — *Western Australian Marine Act 1982* [Heading inserted: No. 24 of 2023 s. 97.] ##### 135. Repeals (1) The *Western Australian Marine Act 1948‑1980* is repealed. (2) Part VIII of the Merchant Shipping Act is repealed. (3) In this Part, Merchant Shipping Act means the Imperial Act known as the *Merchant Shipping Act 1894*, as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act or of any Act, in so far as that Act, as so amended or otherwise affected in its operation, is part of the law of the State. (4) The right of a shipowner to limit his liability in respect of a claim arising out of an occurrence that took place before the coming into operation of this section is not affected by the repeal of Part VIII of the Merchant Shipping Act by subsection (2) or by the provisions of Divisions 1 and 4 of Part IV of this Act. ### Division 2 — *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* [Heading inserted: No. 24 of 2023 s. 99.] ##### 136. Certain orders, notices, exemptions and certificates (1) An order in effect under section 66(1) immediately before the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 50(1) comes into operation has effect on and after that day as if made by the chief executive officer under section 66(1). (2) A notice in effect under section 67(1) immediately before the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 51 comes into operation has effect on and after that day as if it were an order under section 67(1). (3) A notice in effect under section 99(2) immediately before the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 69 comes into operation has effect on and after that day as if it were an exemption granted under section 115A(1), to the extent not inconsistent with section 115A(1). (4) An exemption in effect under section 99(3) immediately before the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 69 comes into operation has effect on and after that day as if it were granted under section 115A(1) or (1A) or both. (5) A certificate in effect under section 118 or 134 immediately before the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 79 comes into operation continues to have effect on and after that day as if it were an identity card issued under section 118 on the same terms and conditions as the certificate. (6) An order, notice, exemption or certificate that has effect under this section has effect subject to this Act. [Section 136 inserted: No. 24 of 2023 s. 99.] ##### 137. Transitional regulations commencement day means the day on which the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* section 36 comes into operation; publication day, in relation to transitional regulations, means the day on which the transitional regulations are published on the WA legislation website; transitional regulations means regulations made for the purposes of subsection (2). (2) The regulations may deal with matters of a transitional, savings or application nature arising in connection with the enactment of the *Marine Safety (Domestic Commercial Vessel National Law Application) Act 2023* Parts 9 and 10. (3) Transitional regulations cannot be made after the end of the period of 2 years beginning on commencement day. (4) If transitional regulations provide that a state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than publication day, but not earlier than commencement day, the regulations have effect according to their terms. (5) If transitional regulations contain a provision referred to in subsection (4), the provision does not operate so as to — (a) affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before publication day; or (b) impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before publication day. [Section 137 inserted: No. 24 of 2023 s. 99.] ### Division 3 — *Western Australian Marine Amendment Act 2023* [Heading inserted: No. 31 of 2023 s. 27.] ##### 138. Offences against repealed section 59 repeal day means the day on which the *Western Australian Marine Amendment Act 2023* section 9 comes into operation. (2) Despite *The Criminal Code* section 11, a person may be prosecuted and punished for an offence committed against section 59 before repeal day. [Section 138 inserted: No. 31 of 2023 s. 27.] ##### 139. Transitional regulations assent day means the day on which the *Western Australian Marine Amendment Act 2023* receives the Royal Assent; publication day, for transitional regulations, means the day on which the transitional regulations are published in accordance with the *Interpretation Act 1984* section 41; specified means specified or described in transitional regulations; transitional matter — (a) means a matter or issue of a transitional nature that arises because of the enactment of the *Western Australian Marine Amendment Act 2023*; and (b) includes a saving or application matter. (2) Regulations (transitional regulations) may do either or both of the following — (a) make any provision that is necessary or convenient for dealing with a transitional matter; or (b) make any provision that is necessary or convenient in consequence of, or for giving effect to, the enactment of the *Western Australian Marine Amendment Act 2023*. (3) Transitional regulations may provide that specified provisions of this Act — (a) do not apply to, or in relation to, a specified matter or thing; or (b) apply with specified modifications to, or in relation to, a specified matter or thing. (4) If transitional regulations provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than publication day but not earlier than assent day, the transitional regulations have effect according to their terms. (5) If transitional regulations contain a provision referred to in subsection (4), the provision does not operate so as to — (a) affect in a manner prejudicial to a person (other than the State or an authority of the State) the rights of that person existing before publication day; or (b) impose liabilities on a person (other than the State or an authority of the State) in respect of an act done or omission made before publication day. [Section 139 inserted: No. 31 of 2023 s. 27.]