CONTROL OF NAVAL WATERS AMENDMENT ACT 1978
An Act to amend the Control of Naval Waters Act 1918, and for related purposes.
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:
Short title, &c.
1. (1) This Act may be cited as the Control of Naval Waters Amendment Act 1978.
(2) The Control of Naval Waters Act 1918 is in this Act referred to as the Principal Act.
Commencement
2. This Act shall come into operation on a date to be fixed by Proclamation.
3. Sections 2 and 3 of the Principal Act are repealed and the following sections substituted:
Interpretation
“2. (1) In this Act, unless the contrary intention appears—
‘aircraft’ means a machine or apparatus that can derive support in the atmosphere from the reactions of the air or from buoyancy, but does not include a hovercraft;
‘defence land’ means land used by the Commonwealth for purposes related to the defence of the Commonwealth, and includes—
(a) land set apart for, or dedicated to, a public purpose, being a purpose related to the defence of the Commonwealth, by the Governor-General under section 54 of the Lands Acquisition Act 1955; and
(b) land reserved under a law of a Territory for a purpose related to the defence of the Commonwealth;
‘exempt vessel’ means—
(a) a vessel belonging to, or used by, the Commonwealth, including a vessel belonging to, or used by, the Australian Navy; or
(b) a vessel that is, by virtue of a Proclamation in force under section 3a, an exempt vessel;
‘hovercraft’ means a vehicle that is designed to be supported when in motion wholly or partly by air expelled from the vehicle to form a cushion of which the boundaries include the ground, water or other surface beneath the vehicle;
‘installation’ means—
(a) a naval establishment, dock, dockyard, slipway, victualling yard, arsenal, wharf or mooring owned or used by the Commonwealth; or
(b) any fixed structure, apparatus or equipment used by the Commonwealth for purposes related to the naval defence of the Commonwealth;
‘master’, in relation to a vessel, means the person having the command or charge of the vessel;
‘nautical mile’ means an international nautical mile;
‘naval waters’ means waters that, by virtue of a Proclamation in force under section 3b, are naval waters for the purposes of this Act;
‘sea’ includes any waters within the ebb and flow of the tide;
‘seaplane’ includes a flying boat and any other aircraft designed to manoeuvre on water;
‘superintendent’ means a superintendent appointed under section 3c and, in relation to any naval waters, means the superintendent in whose instrument of appointment those naval waters are specified;
‘vessel’ means any kind of vessel used in navigation by water however propelled or moved and includes a hovercraft or a seaplane on or in water and any other thing capable of carrying persons or goods on, in or under water;
‘waters’ means waters of the sea.
“(2) A reference in the succeeding provisions of this Act (other than section 3a) to a vessel, not being a reference to an exempt vessel, shall be read as not including a reference to an exempt vessel.
Extension of Act to Territories
“3. This Act extends to the external Territories, other than the Australian Antarctic Territory.
Declaration of vessels as exempt vessels
“3a. The Governor-General may, by Proclamation, declare all vessels, or a specified vessel, belonging to, or used by, the naval forces of a specified country to be exempt vessels or an exempt vessel, as the case may be, for the purposes of this Act.
Declaration of waters as naval waters
“3b. (1) This section applies to—
(a) waters that are wholly within a distance of 5 nautical miles from, or from the limits of, an installation; or
(b) waters that are wholly within a distance of 2 nautical miles from the limits of defence land on which there is not an installation.
“(2) The Governor-General may, by Proclamation, declare that specified waters, being waters to which this section applies, are naval waters for the purposes of this Act.
Appointment of superintendents
“3c. (1) The Governor-General may, by instrument in writing, appoint a person to be the superintendent of such naval waters as are specified in the instrument.
“(2) An appointment under sub-section (1) may specify the person to whom the appointment relates by reference to the office or position that the person holds or the functions or duties that the person performs.”.
Power to make regulations
4. Section 4 of the Principal Act is amended—
(a) by omitting paragraph (b) and substituting the following paragraph:
“(b) for appropriating any space in naval waters as a mooring place or anchoring ground for the exclusive use of exempt vessels;
(b) by adding at the end of paragraph (h) “or on the foreshore of any specified part of any naval waters”;
(c) by omitting from paragraph (i) “vessels of the Commonwealth” and substituting “exempt vessels”;
(d) by omitting paragraphs (k) and (1) and substituting the following paragraphs:
“(k) for conferring upon prescribed persons power to remove from, or from the foreshore of, any naval waters persons—
(i) who, in those waters or on the foreshore of those waters, have contravened the regulations; or
(ii) who, by entering into those waters or onto the foreshore of those waters, have contravened the regulations;
“(l) for prohibiting, restricting or regulating the entry of—
(i) vessels or persons into any naval waters or any specified part of any naval waters;
(ii) aircraft or persons into the airspace over any naval waters or any specified part of any naval waters; or
(iii) aircraft, vehicles or persons onto the foreshore of any naval waters or any specified part of the foreshore of any naval waters;
“(m) for prohibiting, restricting or regulating the doing of any act or thing—
(i) in any naval waters or any specified part of any naval waters;
(ii) in the airspace over any naval waters or any specified part of any naval waters; or
(iii) on the foreshore of any naval waters or any specified part of the foreshore of any naval waters;
“(n) generally for making provision for the proper protection of—
(i) installations in, or on the foreshore of, any naval waters; and
(ii) exempt vessels within any naval waters; and
“(o) for prescribing penalties, not exceeding $1,000 or imprisonment for 6 months, for any contravention of, or failure to comply with, the regulations.”; and
(e) by adding at the end thereof the following sub-section:
“(2) Without limiting the generality of the power of the Governor-General to make regulations under this section, the regulations may—
(a) prohibit the doing of an act or thing absolutely; or
(b) prohibit the doing of an act or thing unless the approval of a specified person to the doing of the act or thing has been obtained.”.
Construction of certain buildings, &c., may be prohibited
5. Section 5 of the Principal Act is amended by omitting “defined” (wherever occurring).
6. Section 6 of the Principal Act is repealed and the following sections substituted:
Power of superintendent to give directions concerning vessels within naval waters, &c.
“6. (1) Where a vessel is within any naval waters, the superintendent of those naval waters may give to the master of the vessel directions as to the mooring, anchoring, placing, unmooring or removal of the vessel.
“(2) The master of a vessel shall not fail to comply with a direction given to him under sub-section (1).
Penalty: $1,000.
“(3) If—
(a) there is no person on board a vessel within any naval waters to comply with directions given or proposed to be given under sub-section (1) by the superintendent of those naval waters; or
(b) the master of a vessel within any naval waters refuses or fails to comply with directions given under sub-section (1) by the superintendent of those naval waters,
the superintendent may cause the vessel to be moored, anchored, placed, unmoored, or removed in compliance with directions given by him, and, for that purpose, may do, or cause to be done, such acts or things as he considers necessary.
Power of superintendent to give directions concerning aircraft, vehicles or vessels on foreshore of naval waters, &c.
“6a. (1) Where an aircraft, vehicle or vessel is on the foreshore of any naval waters, the superintendent of those naval waters may give to the person having the command or charge of the aircraft, vehicle or vessel directions as to the placing or removal of the aircraft, vehicle or vessel.
“(2) The person having the command or charge of an aircraft, vehicle or vessel shall not fail to comply with a direction given to him under sub-section (1).
Penalty: $1,000.
“(3) If—
(a) there is no person having the command or charge of an aircraft, vehicle or vessel that is on the foreshore of any naval waters to comply with directions given or proposed to be given under sub-section (1) by the superintendent of those naval waters; or
(b) the person having the command or charge of an aircraft, vehicle or vessel that is on the foreshore of any naval waters refuses or fails to comply with directions given under sub-section (1) by the superintendent of those naval waters,
the superintendent may cause the aircraft, vehicle or vessel to be placed or removed in compliance with directions given by him, and, for that purpose, may do, or cause to be done, such acts or things as he considers necessary.”.
Power to remove vessel, wreck, &c.
7. Section 7 of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:
“(1) The superintendent of any naval waters may cause to be removed—
(a) any wreck or other thing that is an obstruction to, or to the approaches to, those naval waters;
(b) any floating timber that impedes the navigation of those naval waters; or
(c) any vessel wrecked, laid by, abandoned, sunk, stranded or neglected that is lying within, or on the foreshore of, those naval waters.”.
8. Section 8 of the Principal Act is repealed and the following section substituted:
Recovery of expenses of removal of vessels, &c.
“8. (1) The expenses incurred by the Commonwealth by reason of the exercise by a superintendent of a power conferred on him by sub-section 6(3) or 6a(3) or section 7, shall, on demand, be paid to the Commonwealth by the owner of the property in relation to which the power was exercised.
“(2) Where the Commonwealth has incurred expenses referred to in sub-section (1), the superintendent may detain the property in respect of which the expenses were incurred until payment of those expenses in accordance with that sub-section.
“(3) If, after the expiration of 3 months after the making of a demand for the payment of expenses referred to in sub-section (1), payment of those expenses has not been made to the Commonwealth, the Commonwealth may cause to be sold by public auction the property in respect of which the expenses were incurred and, out of the proceeds of the sale, may, to the extent that the amount of those proceeds allows, recover those expenses and the expenses of the sale.
“(4) For the purposes of a sale under sub-section (3), the Commonwealth shall be deemed to be the absolute owner of the property the subject of the sale.
“(5) Where, after the recovery of expenses from the proceeds of a sale under sub-section (3), a surplus remains, the Commonwealth shall, on demand by the owner of the property the subject of the sale, pay that surplus to the owner.
“(6) Where the proceeds of a sale of property under sub-section (3) are not sufficient to recover the expenses incurred in respect of the property and the expenses of the sale, any deficiency is recoverable by the Commonwealth from the owner of the property in any court of competent jurisdiction as a debt due to the Commonwealth.”.
Savings
9. (1) An instrument defining the limits of any naval waters made by the Governor-General under section 3 of the Principal Act and in force immediately before the commencement of this Act continues in force after that commencement as if it had been a Proclamation made by the Governor-General under section 3b of the Principal Act as amended by this Act.
(2) Regulations made under the Principal Act and in force immediately before the commencement of this Act continue in force after that commencement as if made under the Principal Act as amended by this Act.
(3) Where, before the commencement of this Act, a Senior Naval Officer incurred expenses in the execution of any power conferred upon him by section 6 or 7 of the Principal Act, section 8 of the Principal Act continues to apply to and in relation to—
(a) the repayment of those expenses;
(b) the detention and sale of a vessel, wreck, thing or timber;
(c) the recovery of any deficiency from the owner of the vessel, wreck, thing or timber; and
(d) the payment to the owner of any surplus.