Marine Safety Act 1998 No 121

Currency

As amended to Statute Law (Miscellaneous Provisions) Act 2019 (No 1). Sch 1.11 commenced 1 July 2019. Current to 1 July 2019.

Jurisdiction

Section 127(1): Proceedings for an offence against this Act or the regulations are to be disposed of summarily before the Local Court or the Supreme Court in its summary jurisdiction.

Section 127(2): The maximum monetary penalty that the Local Court may impose is 100 pu, despite any higher maximum monetary penalty provided in respect of the offence.

Time for commencement

Section 128: Proceedings for an offence against the Act or regulations may be commenced not later than 2 yrs after the date of the offence, notwithstanding the provisions of the Criminal Procedure Act 1986.

Drugs and alcohol

The Act provides a scheme for regulating drugs and alcohol when “operating” a vessel that is substantially similar to that provided under the road transport legislation. This includes provisions for sampling (blood/urine, etc) and for certificate evidence, which are found in Sch 1 of the Act.

Part 3 Boating safety — alcohol and other drug use

Section 20: In Pt 3 and in Sch 1 “breath analysing instrument”, “breath test” and “drug” have the same meaning as in the Road Transport Act 2013.

“Major Offence” means:

(a) 

the crime of murder or manslaughter or an offence against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, being a crime or offence by which the death or bodily harm to another person was caused by or arose out of the operation of a vessel, or

(b) 

an offence against Part 3. (ss 20–28C).

Section 20(3): An offence against Pt 3 or Sch 1 is a second or subsequent offence only if, within the period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence.

Prescribed concentrations of alcohol

Section 22 provides that in Pt 3 and Sch 1:

  • Novice range PCA — 0.00 to 0.02 (under 18 yrs of age)

  • Special range PCA — 0.02 to 0.05 (under 18 yrs of age or operating a vessel for commercial purposes)

  • Low range PCA — 0.05 to 0.08

  • Middle range PCA — 0.08 to 0.15

  • High range PCA — 0.15 or more

The term “operate” a vessel (s 20), has a wide definition, and includes being towed, acting as observer or supervising a juvenile.

Note also s 21(2) which provides that the vessel must be “underway” (that is, not moored, berthed or at anchor). “Underway” means not at anchor, not made fast to the shore and not aground: cl 3 Marine Safety Regulation 2016.

Under 18 years of age

Novice range and special range both apply to any person under the age of 18 yrs operating a vessel: s 24. Accordingly, an offence of novice range is applicable to a person under 18 yrs who returns a reading of zero to 0.02, and an offence of special range is applicable to a person under 18 yrs who returns a reading of 0.02 to 0.05.

Commercial purpose

Section 4 of the Act defines “commercial purpose” as a purpose for which a vessel is used that results in the vessel being a commercial vessel. “Commercial vessel” has the same meaning as “domestic commercial vessel” in the National law. (Note: Pt 1A of the Act provides for the adoption of Commonwealth domestic commercial vessel national law in respect to marine safety in relation to domestic commercial vessels in NSW).

It is an offence to operate a vessel for commercial purposes while there is present the special range PCA: s 24(2).

Section 24(6) provides for alternative verdicts to be entered where the evidence before the court is of a lower reading (less serious nature) than originally charged, and where an offence is available for the lower reading. (See s 24(7) for a categorisation of “less serious nature” offences.)

Section 24(9) provides a defence to the charge of PCA in the novice range where the PCA reading was not caused by the consumption of an alcoholic beverage or substance.

DUI offences

SECTION DESCRIPTION PENALTY (MAX)
PCA as measured in 100 ml of blood or 210 litres of breath
24(1) Novice range PCA – 0.00 to 0.02 1st off 10 pu;
2nd off 20 pu
24(2) Special range PCA – 0.02 to 0.05 1st off 10 pu;
2nd off 20 pu
24(3) Low range PCA – 0.05 to 0.08 1st off 10 pu;
2nd off 20 pu
24(4) Middle range PCA – 0.08 to 0.15 1st off 20 pu and/or 9 mths;
2nd off 30 pu and/or 12 mths
24(5) High Range PCA – 0.15 or more:
(or refuse breath analysis/wilfully alter: cl 4(4) and (5), Sch 1)
1st off 30 pu and/or 18 mths;
2nd off 50 pu and/or 2 yrs
25(1), (2) Operate vessel while illicit drug present in oral, fluid, blood or urine 1st off 10 pu;
2nd off 20 pu
26(1), (2) Operate vessel under influence of alcohol or drug 1st off 20 pu and/or 9 mths;
2nd off 30 pu and/or 12 mths
Sch 1, cl 17(1)(a), (c) or (d)

Sch 1, cl 17(1)(b)

Refuse/fail to undergo breath test

Refuse/fail to submit to breath analysis, refuse/fail to submit
to taking of a blood sample

10 pu

1st off 30 pu and/or 18 mths;
2nd off 50 pu and/or 2 yrs

Sch 1 cl 20(1), (2) Hinder or obstruct authorised officers or sample takers 20 pu

Other offences

SECTION DESCRIPTION PENALTY (MAX)
10(3) Contravention of regs for prevention of collisions at sea etc 50 pu
11(4) Operating vessel in contravention of notice
  • notice re wash creation

  • notice re speed/mooring/anchoring/use

 

50 pu

10 pu

13(1) Negligent/reckless/dangerous operation of vessel:
  • occasioning death/gbh

    foreign vessel or regulated Australian vessel

    other commercial vessel

    hire and drive or recreational vessel

  • not occasioning death/gbh

    foreign vessel or regulated Australian vessel

     

    other commercial vessel

     

    hire and drive or recreational vessel

 

 

100 pu* and/or 2 yrs

100 pu and/or 2 yrs

50 pu and/or 2 yrs

 

1st off 100 pu* and/or 9 mths;
2nd off 12 mths

1st off 100 pu* and/or 9 mths;
2nd off 12 mths

1st off 50 pu* and/or 9 mths;
2nd off 12 mths

13A(1) Operate vessel in a menacing manner with intent 1st off 30 pu and/or 18 mths;
2nd off 50 pu* and/or 2 yrs
13A(2) Operate vessel in a menacing manner—possibility of menace 1st off 20 pu and/or 12 mths;
2nd off 30 pu* and/or 18 mths
35(1) Pretend to be marine safety licence holder 50 pu
35(2) Provide false or misleading information to obtain licence 50 pu
40 Fail to return suspended/cancelled licence 10 pu
51(1) Owner operate unregistered vessel/no registration cert 20 pu
51(2) Master operate unregistered vessel/breach registration 20 pu
63 Operate recreational vessel without licence 15 pu
63A(1) Operate recreational vessel when disqualified/make application for a boat driving licence during a period of disqualification 1st off 30 pu and/or 18 mths;
2nd off 50 pu* and/or 2 yrs
97A Obstruction/assault of authorised officers/others 100 pu and/or 3 mths
102 Fail to comply with any requirement to provide information for the purposes of an investigation under Div 2 Pt 8 50 pu
*

Maximum penalty in the Local Court: s 127(2).

Cancellation and suspension — section 28A

Section 28A(1)(a) provides the court with the power to cancel or suspend the licence upon conviction for an offence under Pt 3. Section 135A deals with national licences.

Section 28A(1)(b) gives the court the discretion to impose a disqualification “for a period specified by the court”.

Section 28A(2) provides for an automatic disqualification periods of between 3 and 12 months for offences involving alcohol or drugs if during the period of 5 years before the conviction the person had not been convicted of any other major offence. If during the period of 5 years before the conviction the person has been convicted of any other major offence, automatic disqualification periods of between 6 months to 2 years apply. However, courts are not bound by these periods and may specify shorter periods: s 28A(3).

“Major offence” does not include previous road transport PCA offences or other motor vehicle offences, which, notwithstanding they may be of a similar nature.

Disqualification is of the convicted person’s “marine safety licence”, which is a licence issued under the Act (for example, a boat licence or registration, see s 29). There is no power following conviction for a marine PCA to penalise a drivers licence or other licence issued under the road transport legislation.