NORFOLK ISLAND

MARINE SAFETY ACT 2013

An Act to provide for the safety and regulation of marine navigation and marine activities, the establishment of a Marine and Harbour Authority, to clarify and confirm responsibility for search and rescue operations and for related purposes.

BE IT ENACTED by the Legislative Assembly of Norfolk Island as follows —

Part 1  Preliminary

1. Name of Act

This Act is the Marine Safety Act 2013.

2. Commencement

(1) This Act other than Part 4 and divisions 2, 3, 4 and 5 of Part 5 commence on the day notice of assent is published in the Gazette.

(2) Part 4 and divisions 2, 3, 4 and 5 of Part 5 shall commence on a day or days fixed by the Administrator by notice in the Gazette.

3. Objects of Act

(1) The objects of this Act are as follows

(a) to ensure the safe operation of vessels operating from, and in the seas adjoining, Norfolk Island;

(b) to promote the responsible operation of vessels so as to protect the safety and amenity of other users and the amenity of occupiers of adjoining land;

(d) to provide for the investigation of marine accidents and for appropriate action following any such investigation; and

(e) to provide for the investigation by the Coroner of deaths at sea.

(2) To give effect to paragraph (1)(e), the Coroners Act 1993 is amended as provided in Schedule 2.

4. Definitions

(1) In this Act

Authorised officer means

(a) a police officer; or

(b) the Harbour Master;

(d) an authorised person under the Immigration Act 1980;

(e) a person (or a person of a class) appointed as an authorised officer under section 61.

Authority means the Norfolk Island Marine and Harbour Authority established in Part 9.

commercial vessel means any vessel used or intended to be used for or in connection with any business or commercial activity, including a fishing vessel, and includes (but is not limited to) a vessel used or intended to be used wholly or principally for

(a) carrying passengers or cargo for hire or reward, whether within or outside Norfolk Island waters or in the course of overseas voyages, or

(b) providing services to vessels for reward.

crew of a vessel means the persons (including the master of the vessel) whose duty it is to navigate or work the vessel or to carry out other operations on the vessel.

Crown Counsel means the legal practitioner holding from time to time the position of Crown Counsel in the service of the Administration of Norfolk Island and includes a legal practitioner holding the position of deputy or assistant to the Crown Counsel or who is the delegate of the Crown Counsel or is acting in his or her stead.

exercise a function includes perform a duty.

fishing vessel means a vessel used or intended to be used for catching fish, crustaceans, or other living resources of the sea or seabed for profit or reward.

function includes a power, authority or duty.

Harbour Master means the person appointed under section 106.

marine activity means an activity carried on for commercial purposes that may or may not involve the use or utilisation of a vessel and includes―

(a) underwater diving equipment;

(b) submerged or partially submerged structures;

(d) any activity connected with the sea declared by regulation to be a marine activity.

marine search and rescue operation means an operation that is carried out with a view to effecting any of the purposes referred to in section 71.

master of a vessel means the person having the command or charge of the vessel.

Minister means (unless the context otherwise requires) any Norfolk Island Minister appointed under the Norfolk Island Act 1979 (Cth) for the time being with responsibility for this Act or any delegate thereof.

navigable waters means all waters within the territory of Norfolk Island that are from time to time capable of navigation by a vessel (including something declared not to be a vessel) and are open to or used by the public for navigation or the carrying out of marine activities or both.

Navigation aid means any device used for the safety of navigation (such as a beacon, buoy or marine mark), but does not include a device on board a vessel.

Norfolk Island Marine and Harbour Authority―see Part 9.

operate a vessel includes

(a) to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway); and

(b) to pilot the vessel; and

Norfolk Island waters means any navigable waters within the limits of the territory of Norfolk Island as defined in Schedule 1 of the Norfolk Island Act 1979.

officer in charge means the person from time to time in charge of the Norfolk Island Police.

overseas voyage means a voyage that has as its intent a voyage from Norfolk Island to any other place.

owner of a vessel is defined in section 7.

personal water craft or PWC is a vessel propelled by an inboard motor powering a water jet pump. The operator sits, stands or kneels on the vessel and uses handle bars to steer the craft.

port includes any of the following waters (or any part of those waters)

(a) any harbour or haven, whether natural or artificial;

(b) any navigable water in which vessels may lie for shelter or for the transfer of cargo or passengers.

recreational vessel means a vessel other than a commercial vessel that is used, or is intended to be used, wholly for recreational or sporting activities (whether or not let, or intended to be let, for hire or reward or consideration of any kind).

Registrar means the Marine Registrar established by section 26.

sailboard includes small floating devices usually controlled and operated by one person and powered by a sail attached to the board or by a kite or similar device attached to the person controlling the board;

Example: “wind surfer”, “wave jumper”, “kite surfer”.

(2) For the purposes of this Act, a vessel is taken to be proceeding on a voyage from when it gets underway for the voyage until it gets underway for another voyage.

(3) Notes in the text of this Act do not form part of this Act.

5. Meaning of “vessel”

(1) In this Act, vessel includes water craft of any description used or capable of being used as a means of transportation on or beneath the surface of water.

(2) Without limiting the above, a vessel includes―

(a) any non-displacement craft; and

(b) a seaplane, but only while it is on water.

(3) However, a vessel does not include anything declared by the regulations not to be a vessel and includes anything used on water that is declared by the regulations to be a vessel.

Note―a non-displacement craft refers to such vessels as “air-cushion” vessels known as hovercraft and hydrofoils.

6. Meaning of vessel “connected with Norfolk Island”

A vessel is connected with Norfolk Island for the purposes of this Act if―

(a) the vessel is owned by a person who is ordinarily resident in Norfolk Island; or

(b) the vessel is owned by a person whose place of business, or principal place of business, is in Norfolk Island; or

(c) the vessel is owned by a person whose principal place of business for managing the vessel’s operation is in Norfolk Island; or

(d) the vessel is declared by the Regulations to be a vessel connected with Norfolk Island.

7. Meaning of “owner” of vessel and “owner” of “marine activity”

(1) In this Act, owner of a vessel or of a marine activity means (subject to this section) the person who owns―

(a) the vessel; or

(b) the business of the marine activity or the property or services used in their provision for the marine activity.

(2) A reference in this Act to the owner of a vessel includes a reference to a person who is the charterer of the vessel.

(3) A reference in this Act to the owner of a vessel or of a marine activity includes a reference to a joint owner of the vessel or of the marine activity.

(4) A reference in this Act to the owner of a vessel or of a marine activity includes a reference to any person who, whether on the person’s own behalf or on behalf of another―

(a) exercises any of the functions of the owner of the vessel or of the marine activity; or

(b) publicly represents that the person has those functions or accepts the obligation to exercise those functions.

(5) For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired.

8. Vessels and waters to which Act applies

(1) This Act applies to and in respect of the following vessels (and their owners, masters, crew and passengers)―

(a) all vessels that are in Norfolk Island waters (including vessels proceeding on overseas voyages);

(b) all vessels that are proceeding on voyages other than overseas voyages (including vessels that have left Norfolk Island waters);

(2) This section is subject to any express provision of this Act to the contrary.

Note:  Part 4 (relating to requirements for vessels) applies to a restricted class of vessels and persons, and Part 5 (relating to investigations) applies to a wider class of vessels and persons.

(3) Subsection (1) and this Act generally does not apply to any matter that is dealt with by the Navigation Act 2012 (Cth) that also has application to Norfolk Island or to a vessel within Norfolk Island waters or to a vessel that would but for that Act be within the jurisdiction of Norfolk Island.

9. Act does not apply to Defence Force vessels

This Act does not apply to or in respect of a vessel belonging to the Defence Force of Australia or to the naval, military or air forces of any other country.

Part 2  Safety of navigation

10. Regulations for prevention of collisions at sea or in other navigable waters

(1) The regulations may make provision for or with respect to the prevention of collisions in navigable waters (including the use on vessels of lights, shapes and signals).

(2) The regulations under this section may adopt, with or without modification, international regulations for preventing collisions at sea.

(3) The master or any other person concerned in the operation of a vessel who contravenes the regulations under this section, or who causes those regulations to be contravened, is guilty of an offence.

Maximum penalty: 50 penalty units.

11. Speed limits, no wash zones and other restrictions on the operation of vessels in navigable waters by display of notice

(1) The Minister, on the advice or recommendation of the Authority, may prohibit or regulate the operation of vessels in navigable waters by a notice displayed in or in the vicinity of those waters.

(2) The Minister, on the advice or recommendation of the Authority, may, by such a notice, impose any restriction considered appropriate for the safety of the public or for the protection of vessels or other property. In particular, the Minister may impose restrictions on

(a) the speed of vessels; or

(b) the creation of wash by vessels; or

(d) the use of vessels for particular purposes.

(3) A notice under this section may apply

(a) to vessels generally or to any class of vessels specified in the notice; and

(b) at all times or at such times as may be specified in the notice; and

(d) in any other circumstances specified in the notice.

(4) A person who operates a vessel to which a notice under this section applies in contravention of the notice is guilty of an offence.

Maximum penalty: 10 penalty units.

(5) The regulations may exempt vessels from compliance with a notice under this section.

(6) The regulations may make provision for or with respect to the admission in evidence and the effect of certificates, in proceedings for offences against this section, of the measurement of the speed or other matter relating to the use of vessels by measuring devices.

(7) In any proceedings for an offence against this section, proof of the display of a notice in accordance with this section is not required until evidence is given to the contrary.

12. Reckless, negligent, dangerous navigation

(1) Reckless or negligent navigation  A person must not operate a vessel in any navigable waters recklessly or negligently.

Maximum penalty: 50 penalty units.

(2) Dangerous navigation  A person must not operate a vessel in any navigable waters at such a speed or otherwise in any way that is dangerous to the public.

Maximum penalty: 50 penalty units.

(3) Other dangerous acts  A person who is on a vessel in navigable waters, or is being towed by such a vessel, must not do anything that is dangerous to the public.

Maximum penalty: 50 penalty units.

(4) Definition in this section

dangerous to the public includes anything that causes or is likely to cause injury to any person or damage to any property.

13. Unreasonable interference by operation or use of vessel

A person must not―

(a) operate a vessel in any navigable waters; or

(b) make any other use of a vessel in any navigable waters,

in a manner that interferes unreasonably with the lawful use of those waters (or of adjoining land) by other persons.

Maximum penalty: 50 penalty units.

14. Protection of navigation aids

(1) A person must not, without reasonable excuse, remove, damage, interfere with or obstruct the use of any navigation aid.

Maximum penalty: 50 penalty units.

(2) A person may be charged with this offence and with an offence under section 164 of the Criminal Code 2007 (Removing or concealing buoys, etc) but may only be convicted of one offence in respect of the same conduct or action.

15. Removal of obstructions in navigable waters

(1) In this section, obstruction to navigation means anything in, over or on navigable waters (including a vessel, whether wrecked or not) that―

(a) is a danger to the safe navigation of vessels; or

(b) is moored, berthed or placed in contravention of any regulation or enactment,

but not including anything lawfully erected in, over or on navigable waters.

(2) The Harbour Master, on the advice or recommendation of the Authority, may direct the owner of or person responsible for an obstruction to navigation to remove the obstruction within such time as is specified in the notice. Any such owner or person who fails, without reasonable excuse, to comply with the direction is guilty of an offence.

Maximum penalty: 50 penalty units.

(3) The Harbour Master, on the advice or recommendation of the Authority, may remove, or authorise the removal of, any obstruction to navigation in such manner as the Authority thinks fit (whether or not the Authority has issued a direction for its removal under this section). The obstruction may be removed by its destruction if it is reasonable to do so in the circumstances.

(4) The Harbour Master, on the advice or recommendation of the Authority may, subject to and in accordance with the regulations, dispose of anything removed under this section.

(5) The Harbour Master may recover as a debt in a court of competent jurisdiction the reasonable costs and expenses incurred by the Harbour Master in the exercise of the Harbour Master’s powers under this section from the owner of or person responsible for the obstruction to navigation.

(6) Nothing in this section requires the Harbour Master to obtain or first receive any advice or recommendation from the Authority before issuing any direction or taking any action.

16. Regulation of aquatic activities in navigable waters

(1) In this section―

aquatic activity means―

(a) an activity by one or more persons involving vessels or equipment that is conducted in or on any navigable waters and that restricts or may have an adverse effect upon the availability of those waters for normal use by the public; or

(b) a race or exhibition involving vessels or equipment that is conducted in or on any navigable waters.

conduct an aquatic activity includes promoting or organising the activity for a purpose or carrying out the activity by an individual whether or not in concert with others and whether or not for profit.

(2) Activities to which this section is intended to apply include the operation of PWC’s, and sailboards.

(3) The regulations may prohibit or regulate the conduct of aquatic activities.

(4) Any such regulation may―

(a) prohibit the conduct of aquatic activities without a licence or other approval from the Authority;

(b) designate an area or areas of navigable waters to be closed to particular aquatic activities permanently or from time to time;

(c) provide for the seizure of a vessel or equipment used in contravention of the regulations and for their disposal by order of a court; and

(d) provide for penalties not exceeding 10 penalty units for breach of the regulations.

17. Regulations relating to safety of navigation

(1) The regulations may make provision for or with respect to the safety of navigation.

(2) In particular, the regulations may make provision for or with respect to―

(a) the operation of vessels in navigable waters; and

(b) vessels or objects that have been abandoned in navigable waters; and

(c) the activities of persons that affect navigation (including PWC, sailboards, divers or other persons in or on navigable waters including persons carried on vessels); and

(d) navigation aids; and

(e) cables, wires, pipes or other material crossing over or under any navigable waters, and their supporting structures; and

(f) the safety of port or jetty operations relating to vessels, passengers and cargo.

(3) The regulations may provide that a person may apply to the Administrative Appeals Tribunal for a review of a decision made under the Act or the regulations other than a decision to prosecute or hold any inquiry or conduct any investigation.

Part 3  Boating safety  Alcohol and drugs

18. Definitions

(1) In this Part―

drug has the same meaning as it has in the Traffic Act 2010.

juvenile means a person who is not more than 16 years of age.

major offence means―

(a) a crime or offence by which the death of or bodily harm to another person was caused by or arose out of the operation of a vessel; or

(b) an offence against this Part.

operate a vessel includes ―

(a) being towed by a vessel, whether on a water ski, aquaplane, paraflying device or other device; or

(b) act as observer on a vessel, for safety purposes, of any person being towed by the vessel.

(2) A reference in this Part to this Part includes a reference to Schedule 1.

19. Application of Part

(1) This Part applies to all vessels. However, this Part does not apply to a surfboard or similar device used by a swimmer or surfer to support the swimmer or surfer in the water (other than a sailboard or a device being towed by a vessel).

(2) This Part applies to a vessel only while the vessel is underway.

(3) This Part applies to all navigable waters.

20. Prescribed concentrations of alcohol

A reference in this Part to a special range prescribed concentration of alcohol is reference to one of the following ―

(a) the novice range prescribed concentration of alcohol is reference to a concentration greater than zero but less than 0.08 grams of alcohol in 100 millilitres of blood;

(b) the low range prescribed concentration of alcohol is a reference to 0.08 grams or more, but less than 0.10 grams, of alcohol in 100 millilitres of blood; and

(c) the middle range prescribed concentration of alcohol is a reference to a concentration of 0.10 grams or more, but less than 0.15 grams, of alcohol in 100 millilitres of blood; and

(d) the high range prescribed concentration of alcohol is a reference to a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood.

21. Operating vessel under influence of alcohol or other drug

(1) A person must not operate a vessel in any waters while under the influence of alcohol or any other drug.

Maximum penalty: 15 penalty units.

(2) The master of a vessel must not permit a person to operate in any waters a vessel in the charge of the master if the master is aware, or has reasonable cause to believe, that the person is under the influence of alcohol or any other drug.

Maximum penalty: 15 penalty units.

(3) If a person is charged with an offence under this section―

(a) the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information; and

(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of―

(i) a drug described in the information; or

(ii) a combination of drugs any one or more of which was or were described in the information;

22. Operating vessel or supervising juvenile with prescribed concentration of alcohol in blood

(1) A person who operates a vessel in any waters while there is present in the person’s blood the novice range prescribed concentration of alcohol is guilty of an offence if―

(a) the person is under 18 years of age; or

(b) the person operates the vessel for commercial purposes.

Penalty: (a) in the case of a first offenceto a penalty not exceeding 5 penalty units; or

(b) in the case of a second or subsequent offenceto a penalty not exceeding 10 penalty units.

(2) A person who operates a vessel in any waters while there is present in the person’s blood the prescribed concentration of alcohol greater than the novice range is guilty of an offence.

(3) A person who―

(a) is required by or under this Act to supervise a juvenile operator of a motor vessel; and

(b) permits the juvenile to operate the motor vessel in any waters while a concentration in the novice range or above is present in the blood of the person,

is guilty of an offence.

(4) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the low range prescribed concentration of alcohol―

(a) in the case of a first offenceto a penalty not exceeding 5 penalty units; or

(b) in the case of a second or subsequent offenceto a penalty not exceeding 10 penalty units.

(5) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the middle range prescribed concentration of alcohol, to a penalty not exceeding 10 penalty units, or to imprisonment for a period not exceeding 6 months, or both.

(6) A person who is guilty of an offence under this section is liable, if there is present in the person’s blood the high range prescribed concentration of alcohol―

(a) in the case of a first offenceto a penalty not exceeding 15 penalty units, or to imprisonment for a period not exceeding 9 months, or both; or

(b) in the case of a second or subsequent offenceto a penalty not exceeding 20 penalty units or to imprisonment for a period not exceeding 12 months, or both.

(7) For the purposes of this section, if a person is guilty of an offence under this section, that offence―

(a) is a second or subsequent offence under this section if and only if, within the period of 5 years immediately before being convicted of the offence, the person was convicted of a major offence; and

(b) in any other case is to be treated as a first offence.

23. Double jeopardy

(1) A person is not liable to be convicted (in respect of the same act or omission) of both―

(a) an offence under section 21 of operating a vessel while under the influence of alcohol; and

(b) an offence under section 22.

(2) A person is not liable to be convicted (in respect of the same act or omission) of both ―

(a) an offence under section 21 of operating a vessel while under the influence of alcohol; and

(b) an offence of refusing or failing to submit to a breath analysis or to provide a sample of blood or urine.

24. Breath analysis and other related provisions

The provisions of the Schedule apply and until such time as regulations may prescribe for this Part, section 32 (and the Regulations for the purposes of that section) of the Traffic Act 2010 apply so far as they may be applicable and are not inconsistent with the provisions of this Part (including the use of equipment and machines for breath testing).

Part 4  Marine certificates

Division 1  General

25. Types of marine certificates

For the purposes of this Act, there are the following types of marine certificates

(a) vessel registration certificatebeing a marine certificate for a vessel that is required by division 2 of Part 5;

(b) seaworthy certificatebeing a certificate that is required by division 3 of Part 5;

(c) a boat driving licence  being a licence to operate a power driven recreational vessel that is required by division 4 of Part 5;

(d) any other certificate or licence or approval that is declared by the regulations to be a marine certificate (whether for the purposes of all or only specified provisions of this Act).

Division 2  Grant of marine certificates and related matters

26. The Marine Registrar and Deputy Marine Registrar

(1) For the purposes of this Act, there is a Marine Registrar who is the person from time to time appointed as the Registrar of Motor Vehicles under the Traffic Act 2010.

(2) The Registrar shall exercise such powers and functions as are prescribed.

(3) The powers of the Registrar include―

(a) the power to do any act or thing, or to exercise any function or duty required of the Registrar or as prescribed;

(b) the power to determine the nature, type, description, and category of any class or classes of vessel for which a licence may be issued;

(c) the power to determine the content, manner, venue, and nature of any test required for the issue of a marine certificate, and to determine the level or standard for passing such test; and

(d) the power to determine the particulars, nature, class, or category of any endorsement and condition to be attached to the issue of any marine certificate.

(4) There shall be a Deputy Marine Registrar who is the person from time to time appointed as Deputy Registrar of Motor Vehicles under the Traffic Act 2010.

(5) The Deputy Registrar shall have and may exercise all the powers of the Registrar —

(a) when the Registrar is for any reason unable to act; and

(b) during a vacancy in the office of Registrar; and

(6) Where, under this Act —

(a) the exercise of a power or function by the Registrar; or

(b) the operation of this Act,

is dependent on the opinion, belief or state of mind of the Registrar in relation to a matter —

(d) that provision may operate,

on the opinion, belief or state of mind of the Deputy Registrar in relation to the matter.

27. Grant of certificates and conditions

(1) Marine certificates are to be granted by the Registrar.

(2) The Registrar may approve or refuse applications for marine certificates in accordance with this Act and the regulations.

(3) The Registrar may take such advice from the Authority in connection with compliance with standards for the grant of a marine certificate as the Registrar considers necessary or appropriate or as may be required by regulation.

(4) Marine certificates may be granted unconditionally or subject to conditions.

(5) Any such condition may relate to any matter concerning marine safety, including insurance coverage, or indemnities, for damage or injury caused in connection with the activity to which the licence relates.

(6) After granting a marine certificate, the Registrar may, by notice in writing to the holder of the certificate―

(a) impose conditions or further conditions on the certificate; or

(b) vary or revoke any of the conditions to which the certificate is subject.

(7) A marine certificate is also subject to such conditions as are prescribed by the regulations. Any such condition cannot be varied or revoked by the Registrar under this section.

(8) A boat driving licence can not be issued to a person under the age of 15 years.

(9) A condition under this section may restrict or limit an activity authorised by the certificate.

28. Offence to contravene conditions of certificate

The holder of a marine certificate must not, without lawful excuse, contravene any condition to which the certificate is subject.

Maximum penalty―50 penalty units.

29. Duration of certificate

(1) A marine certificate remains in force (unless sooner cancelled) for the period specified in the certificate or (if no such period is specified) until cancelled.

(2) A marine certificate is not in force during any period it is suspended.

30. Fees for certificates

The fees payable in respect of applications for certificates are to be determined by regulation.

31. Offences

(1) A person must not pretend to be the holder of a marine certificate.

(2) A person must not, for the purpose of obtaining a marine certificate, provide any information or produce any document that the person knows is false or misleading in a material particular.

(3) A person must not operate a recreational vessel for which a boat driving licence is required unless that person is the holder of a boat driving licence that permits the person to operate a recreational vessel of the type being operated.

Maximum penalty―50 penalty units.

(4) If a person in breach of subsection (3) is a person under the age of 16 years the owner of the recreational vessel concerned is liable for any penalty imposed upon the offender as principal offender.

32. Regulations relating to certificates

(1) The regulations may make provision for or with respect to marine certificates.

(2) In particular, the regulations may make provision for or with respect to the following

(a) the classes of a particular type of certificate;

(b) restrictions on the authority conferred by a particular type of certificate or class of certificate, whether by reference to the length of the vessel concerned or otherwise;

(d) the eligibility of applicants (including age, qualifications, knowledge, experience, training and health);

(e) the testing or examination of applicants or the holders of certificates to determine whether they are or continue to be eligible to hold a certificate;

(f) the continuing education and training of holders of certificates;

(g) the grant of further certificates after the expiry of certificates;

(h) the granting of different types of certificates in the same document;

(j) the replacement of certificates that are lost, destroyed or defaced;

(k) the return of certificates that require alteration;

(m) fees payable in connection with certificates and applications for certificates.

Division 3  Suspension or cancellation of marine certificates

33. Suspension or cancellation of certificates by Minister

(1) A marine certificate may be cancelled―

(a) by the Minister in accordance with section 78; or

(b) by the Registrar―

(i) if the person concerned is not qualified, or is no longer qualified, to hold the certificate; or

(ii) in such other circumstances as are prescribed by regulation.

(2) The Minister may at any time remove the suspension of a marine certificate (except a suspension imposed by a court) cancelled under paragraph 1(a), or if cancelled by the Registrar under paragraph 1(b), upon the recommendation of the Authority.

34. Suspension or cancellation of certificates by court in connection with offence

(1) A court that convicts the holder of a marine certificate of a marine safety offence in connection with activities to which the certificate relates may, by order―

(a) cancel or suspend the certificate; and

(b) disqualify the convicted person from holding or obtaining such a certificate for a period specified by the court; and

(c) order the seizure of a vessel involved in the commission of the offence and that it be held for a specified period or sold or destroyed.

(2) Any disqualification under this section is in addition to any penalty imposed for the offence.

(3) In this section, a marine safety offence means any offence relating to the operation of a vessel that causes the death or injury of a person or damage to property, or that causes a risk of any such death, injury or damage.

35. Return of suspended or cancelled certificate

The holder of a marine certificate suspended or cancelled under this Act must deliver the certificate to the Registrar as soon as practicable after the certificate is suspended or cancelled.

Maximum penalty―10 penalty units.

Division 4  Review by Administrative Appeals Tribunal

36. Definition of “Tribunal”

In this division, Tribunal means the Administrative Appeals Tribunal established by the Administrative Appeals Tribunal Act 1975 (Cth).

37. Rights of review

A person who is dissatisfied with any of the following decisions under this Act may apply to the Tribunal for a review of the decision

(a) the refusal to grant a marine certificate to the person;

(b) the imposition of conditions on the person’s marine certificate (otherwise than by regulation);

38. Failure to make decision

For the purposes of this division, an application for the grant of a marine certificate is taken to have been refused if the certificate is not granted within 60 days (or such other period as is prescribed by the regulations) after the application was duly made.

Part 5  Requirements for vessels

Division 1  Unsafe vessels

39. Definition of “unsafe vessel”

(1) A vessel is an unsafe vessel for the purposes of this division if, because of―

(a) the condition or equipment of the vessel; or

(b) the manner or place in which cargo or equipment on the vessel is stowed or secured; or

(d) the overloading of the vessel with persons or cargo (including the submergence of the vessel’s load line); or

(e) the number or qualifications of its crew; or

(f) any other reason―

the operation of the vessel is a danger to human life.

(2) A danger to human life includes anything which is likely to be a danger to human life.

40. Owner or master not to operate unsafe vessel

(1) The owner of a vessel must not operate, or permit to be operated, the vessel if the owner knows that it is an unsafe vessel.

Maximum penalty―100 penalty units or 2 years imprisonment, or both.

(2) The master of a vessel must not operate, or permit to be operated, a vessel if the master knows that it is an unsafe vessel.

Maximum penalty―100 penalty units or 2 years imprisonment, or both.

(3) The fact that an unsafe vessel has been detained under this division does not prevent a prosecution for an offence against this section.

(4) Knowledge that a vessel is an unsafe vessel includes where a reasonable person would know or ought reasonably to know that a vessel is unsafe in the circumstances of the case.

41. Detention of unsafe vessels

(1) The Harbour Master, may order a vessel to be provisionally detained if it appears to the Minister, the Harbour Master, or the Registrar to be an unsafe vessel. The vessel may not be provisionally detained unless it is in Norfolk Island waters.

(2) When a vessel has been ordered to be provisionally detained the following provisions apply―

(a) the Harbour Master must, as soon as practicable, cause to be served on the master or owner of the vessel a notice of the detention and a written statement of the reasons for the detention;

(b) the Harbour Master, is required to appoint an investigator to investigate the vessel in accordance with Part 6 and report to the Minister.

(i) order its release; or

(ii) if of the opinion that it is an unsafe vessel, order it to be finally detained either absolutely or until the performance of such conditions as the Minister considers necessary to ensure that the vessel is not an unsafe vessel.

(d) The Harbour Master may at any time (and without any report) order the release of the vessel (with or without conditions) if satisfied that the vessel is not an unsafe vessel.

(e) Before an order for final detention is made, the Harbour Master must cause a copy of the report to be served on the master or owner of the vessel.

(f) The Harbour Master must cause a copy of an order for final detention to be served on the owner and master of the vessel (if their identity and whereabouts are known to the Harbour Master).

(3) When any order for the final detention of a vessel is made, the vessel must not be released until the Harbour Master is satisfied that its further detention is no longer necessary, and orders its release.

42. Operating detained vessel

(1) The owner of a vessel must not cause or allow the vessel to be taken on a voyage if the owner knows that the vessel has been detained under this division and has not been duly released.

Maximum penalty―100 penalty units or 2 years imprisonment, or both.

(2) The master of a vessel must not take the vessel on a voyage if the master knows that the vessel has been detained under this division and has not been duly released.

Maximum penalty―100 penalty units or 2 years imprisonment, or both.

(3) An agent for a vessel that has been detained under this division and has not been duly released must not assist the owner or master of the vessel to contravene this section.

Maximum penalty―100 penalty units or 2 years imprisonment, or both.

(4) A person must not obstruct or fail to comply with any reasonable requirement of a person appointed by the Minister or the Harbour Master to take charge of a vessel detained under this division in connection with the exercise of that person’s functions.

Maximum penalty― 20 penalty units.

43. Costs of detention

If a vessel is detained under this division without reasonable cause, the Administration is liable to pay the owner of the vessel compensation for any loss or damage resulting from the detention.

Division 2  Vessel registration

44. Vessels requiring registration

(1) All commercial and recreational vessels that operate in Norfolk Island waters are required to be registered under this Act unless exempt from registration.

(2) A vessel that is required to be registered under this Act is a registrable vessel for the purposes of this Act.

45. Vessels exempt from registration

(1) A vessel is exempt from registration under this Act if the vessel is in Norfolk Island waters and is proceeding on an overseas voyage. An Australian fishing vessel is exempt from registration under this Act if it is in Norfolk Island waters and is proceeding on an overseas voyage.

(2) A vessel is exempt from registration under this Act if the vessel―

(a) is not ordinarily operated in Norfolk Island waters, and

(b) has been in Norfolk Island waters for less than 3 months, and

(c) is registered under the law of the Commonwealth, a State, or a Territory, or of another country, and is operated in accordance with that law.

(3) A vessel is exempt from registration under this Act if it is of a class exempted by the regulations.

(4) A vessel is exempt from registration under this Act if the Minister exempts it from registration by order in writing given to the owner or master of the vessel.

46. Offence to operate unregistered vessel

(1) The owner of a registrable vessel must not operate the vessel in Norfolk Island waters unless the vessel is registered under this Act and the owner is the holder of the vessel registration certificate.

(2) The master of a registrable vessel must not operate the vessel in Norfolk Island waters if the vessel is not registered under this Act or is being operated in contravention of any conditions of its vessel registration certificate. It is a defence to a prosecution under this subsection if the master establishes that he or she did not have any reasonable cause to believe that the vessel was not registered or was being so operated.

Maximum penalty―50 penalty units.

Note:The registration of a vessel is a marine certificate--Part 4 deals with the grant of, and other matters relating to, any such certificate. A contravention of the conditions of such a certificate by the owner is an offence - see section 28.

47. Additional grounds for refusal, suspension or cancellation of registration

In addition to any other ground on which the Registrar may refuse to register a vessel or may suspend or cancel its registration, the Registrar may, or may upon the recommendation of the Harbour Master, do so on the following grounds―

(a) on environmental grounds―that is, the vessel causes or will cause unreasonable noise, air or other pollution because of its design, construction or equipment;

(b) on aesthetic grounds―that is, the vessel is or will be an eyesore in the port or other area in which it operates or is moored or in which it is proposed to operate or be moored.

Division 3  Seaworthy certificates for commercial vessels

48. Offence to operate commercial vessel without seaworthy certificate

(1) The owner of a registrable vessel that is a commercial vessel must not operate the vessel in Norfolk Island waters unless the vessel has a seaworthy certificate under this Act.

Maximum penalty―100 penalty units.

(2) The master of a registrable vessel that is a commercial vessel must not operate the vessel in Norfolk Island waters if the vessel does not have a seaworthy certificate under this Act or is being operated in contravention of any conditions of its seaworthy certificate. It is a defence to a prosecution under this subsection if the master establishes that he or she did not have any reasonable cause to believe that the vessel did not have such a seaworthy certificate or was being so operated.

Maximum penalty―100 penalty units.

(3) A seaworthy certificate is not required for a commercial vessel if―

(a) the vessel is of a class exempted by the regulations; or

(b) the Registrar exempts the vessel by order in writing given to the owner or master of the vessel or by a condition of its registration under this Act.

Note:  A seaworthy certificate for a vessel is a marine certificatePart 4 deals with the grant of, and other matters relating to, any such certificate. A contravention of the conditions of such a certificate by the owner is an offence--see section 28.

49. Grant of seaworthy certificate and seaworthy schedule for commercial vessels

(1) A seaworthy certificate is not to be granted for a registrable vessel unless the Registrar is satisfied that the vessel is safe to operate and complies with such requirements as may be prescribed.

(2) Without limiting subsection (1), the Registrar may refuse to grant a seaworthy certificate for a registrable vessel if the Registrar decides to refuse any application for the registration of the vessel.

(3) The Registrar may issue a schedule with a seaworthy certificate and require the vessel, as a condition of the seaworthy certificate, to be inspected in accordance with that schedule to ensure that it continues to comply with relevant requirements and to be safe to operate.

Division 4  Boat driving licences for power-driven recreational vessels

50. Vessels to which division applies

(1) This division applies to any power-driven recreational vessels operating in or from Norfolk Island waters, other than vessels exempted by the regulations and vessels that are not registrable vessels.

(2) In this division, recreational vessel includes a commercial vessel while hired or used for recreational or sporting purposes and not hired or used for any commercial industrial purpose.

51. Offence to operate recreational vessel without boat driving licence

A person must not operate a recreational vessel to which this division applies as its master if the person does not hold a boat driving licence under this Act.

Maximum penalty―15 penalty units.

Note: A boat driving licence is a marine certificatePart 4 deals with the grant of, and other matters relating to, any such licence.

52. Exemption from requirement to hold boat driving licence

A person is exempt from the requirement to hold a boat driving licence if the person―

(a) is not ordinarily resident in Norfolk Island; and

(b) has been operating power-driven recreational vessels in Norfolk Island waters for less than 3 months; and

(c) is licensed under the law of the Commonwealth, a State, or a Territory, or of another country prescribed by regulation, and is operating the vessel in accordance with the conditions of that licence.

Division 5  Miscellaneous provisions relating to vessels

53. Recognised marine certificates

(1) This section applies to a marine certificate that is a vessel registration certificate or a seaworthy certificate required to be held by this Part.

(2) A marine certificate under this Act may take the form of the grant of recognition for a marine certificate (or similar licence) granted under the law of the Commonwealth, of a State or an Australian Territory or of another country.

(3) In that case―

(a) a reference in this Act to the grant of the relevant marine certificate is a reference to the grant of recognition of the licence, and

(b) a reference in this Act to the cancellation or suspension of the relevant marine certificate is a reference to the withdrawal of recognition indefinitely or for a period, and

(c) a reference in this Act to the disqualification of the holder of the relevant marine certificate includes a reference to the disqualification of the person from having a licence recognised.

54. Mutual recognition of marine certificates

(1) The regulations may provide for automatic recognition for any marine certificate to which section 53 applies.

(2) Any such recognition is subject to compliance with the conditions of the licence and of any law of the jurisdiction in which the licence was issued that relates to authority conferred by the licence.

55. Regulation of marine safety equipment or facilities for recreational or other vessels

(1) The regulations may require the installation or carriage on recreational or other vessels of marine safety equipment or facilities.

(2) The requirements of any such regulation may extend to the wearing of safety equipment by persons driving and passengers on PWC, sailboards, water skiers, paragliders, and others engaged in similar aquatic activities.

56. Regulation of design and construction of recreational vessels

The regulations may make provision for or with respect to the design and construction of recreational vessels.

57. Regulation of passengers

The regulations may make provision for or with respect to―

(a) the maximum number of passengers or other persons to be carried on vessels; or

(b) the conduct of passengers on vessels, including the removal of passengers from vessels; or

58. Vessel identification, etc

The regulations may require identifying and other information to be displayed on vessels (including the display of particulars of registration of vessels or the maximum carrying capacity of vessels).

Part 6  Marine investigation and enforcement

Division 1  Preliminary

59. Definitions

(1) In this Part

incompetence of the holder of a marine certificate includes the inefficient performance of any lawful duty required of the holder of that licence.

marine accident means any of the following events involving a vessel operating in navigable waters―

(a) the loss of life of, or injury to, any person on board the vessel;

(b) the loss of a person from the vessel;

(d) the loss, or presumed loss, of the vessel (including the sinking or abandonment of the vessel);

(e) the capsizing, grounding or flooding of the vessel;

(f) the collision of the vessel with another vessel or with any object;

(g) the vessel being disabled at sea (in any case in which it requires assistance);

(h) any fire on board the vessel;

(i) any damage being caused to the vessel (including any structural failure);

(j) any damage to the environment caused by the vessel or by any substance on, or discharged from, the vessel;

(k) any incident that causes danger of any of the above;

but does not include anything excluded from this definition by the regulations.

misconduct by the holder of a marine certificate includes―

(a) carelessness in carrying out any lawful duty required of that holder; or

(b) carrying out any duty while under the influence of alcohol or any other drug; or

(c) any other act or omission that indicates that the person is not a fit and proper person to act in the capacity required by the licence.

(2) In this Part, a reference to the holder of a marine certificate includes a reference to a person whose licence is suspended or cancelled or has otherwise ceased to have effect.

60. Application

This Part extends, in the case of the holder of a marine certificate, to the investigation of a marine accident or any incompetence or misconduct by the holder, even though it occurred or is alleged to have occurred anywhere outside Norfolk Island.

61. Appointment of authorised officers (other than ex-officio authorised officers)

(1) The Minister may appoint, as an authorised officer for the purposes of the marine legislation, any person (including a class of persons) who is a public sector employee.

(2) The authorisation of such a person as an authorised officer can be given generally, or subject to conditions and restrictions or only for limited purposes. If the authorisation is subject to conditions or restrictions or only for limited purposes, nothing in this Act authorises or requires the authorised officer to act in contravention of the condition or restriction or for other purposes.

Note:  An authorised officer is defined in section 4 and includes a person appointed under this section.

62. Identity cards for authorised officers

(1) The Registrar is required to give an identity card to each authorised officer.

(2) An identity card is to be in a form approved by the Minister.

(3) An authorised officer when exercising the functions of the officer is required to produce his or her identity card if requested to do so by an affected person. This subsection does not apply if the officer gives a direction by radio or other communication device.

(4) A person who has been issued with an identity card must return it to the Registrar on demand.

Maximum penalty―10 penalty units.

(5) Until an authorised officer is given an identity card, the officer’s instrument of appointment is taken to be an identity card for the purposes of subsection (3).

Division 2  Duties of masters and owners in case of marine accidents

63. Requirements of masters in case of accident involving vessels

(1) The master of a vessel involved in a marine accident involving 2 or more vessels or the death of or injury to any person―

(a) must stop the vessel; and

(b) must give any necessary assistance that the master is able to give to any person injured or vessel damaged in the accident.

(2) The master of a vessel involved in a marine accident, if required to do so by any person having reasonable grounds for so requiring―

(a) must produce any marine certificate required under this Act to be held by the master; and

(b) must give particulars of his or her name and place of residence, the name and address of the owner of the vessel, the name of the vessel and any distinguishing number that is, or is required to be, displayed on the vessel by law.

(3) The master of a vessel involved in a marine accident, if required so to do by any authorised officer, must give such particulars of the marine accident as the officer requires and the master is able to give.

64. Duty to report marine accidents, etc

(1) When a marine accident occurs in connection with a vessel, the master of that vessel (and the owner of the vessel if aware of the accident) must send a report to the Harbour Master and the officer in charge, and if a death has occurred, the Coroner, containing particulars of the accident as soon as practicable by the quickest means available.

(2) A report is not required to be sent―

(a) if a report of the marine accident has already been sent by the owner or master, or

(b) in any other case prescribed by the regulations.

(3) After receiving a report of a marine accident, the Harbour Master or the officer in charge may require further information from the owner or master of a vessel involved in the accident to determine whether an investigation should be ordered into the marine accident.

(4) The provision of a report of a marine accident to any officer of the Norfolk Island police will be sufficient compliance with this provision.

(5) Where any police officer in Norfolk Island receives a report of a marine accident, such police officer shall ensure a copy thereof is provided to the officer in charge and the Harbour Master and if a death has occurred, the Coroner.

65. Marine accident particulars

The particulars of a marine accident required to be furnished or reported under this division are as follows―

(a) the time, place and nature of the marine accident;

(b) the name and distinguishing number (if any) of each vessel involved in the marine accident;

(d) any loss of life or the estimated extent of any injury or damage resulting from the marine accident.

66. Preservation of evidence

The owner or master of a vessel involved in a marine accident (or other person concerned in the accident) must take all reasonable measures to preserve any evidence relating to the marine accident (including nautical charts, log books and other documents) if he or she has reason to believe that the evidence may be required for an investigation into the marine accident.

67. Offence

A person who―

(a) without reasonable excuse fails to comply with any provision or requirement of this division; or

(b) furnishes any particulars or information under this division that the person knows to be false or misleading―

is guilty of an offence.

Maximum penalty―50 penalty units.

Division 3  Investigation of marine accidents and other marine safety matters

68. Ordering of investigation

(1) The Minister may order an investigation into any of the following―

(a) a marine accident that has been reported under division 2 or that the Harbour Master believes may have occurred;

(b) any situation that has the potential to cause marine accidents;

(d) any alleged incompetence or misconduct of the holder of a marine certificate;

(e) a vessel that has been provisionally detained as an unsafe vessel;

(f) any incident in connection with a port facility that has caused, or has the potential to cause, a danger to life or serious damage to property.

(2) Nothing in this Act or in any regulation shall prevent or hinder or delay in any way the undertaking of any investigation or inquiry into any matter in subsection (1) by any police officer, officer appointed under this Act, any officer as defined by the Immigration Act 1980, any other law enforcement or marine safety authority, any Commissioner acting under the Royal Commissions Act 1928 or by any Coroner.

69. Principal purposes of investigation

The principal purposes of an investigation under this division are―

(a) to determine the circumstances of or concerning the marine accident or other incident as they affect marine safety; and

(b) to make recommendations to prevent the recurrence of any similar marine accident or other incident.

70. Appointment of investigator

(1) The Minister may appoint as the investigator for the purposes of an investigation―

(a) an authorised officer; or

(b) any other person possessing qualifications or experience relevant to the investigation.

(2) Two or more persons may be appointed as joint investigators for the purposes of an investigation.

(3) An investigator is subject to the control and direction of the Minister, except in relation to the contents of any report made by the investigator.

71. Powers of investigator

For the purpose of conducting an investigation, an investigator is an authorised officer and has all the powers and other functions of an authorised officer under this Part.

72. Conduct of investigations

(1) An investigator is to conduct the investigation in such manner as the investigator considers appropriate having regard to the principal purposes of the investigation.

(2) An investigation may extend to all relevant events and circumstances preceding the marine accident or other incident.

(3) At any time during the course of an investigation the Minister may determine that the investigation be discontinued and that a report be prepared and submitted by the investigator.

(4) For the purposes of an investigation, the investigator may rely on any evidence relating to the matter under investigation given in any criminal or civil proceedings or in any coronial or other judicial inquiry.

73. Report to Minister of investigation

(1) On the completion of the investigation, the investigator must prepare and submit a report to the Minister.

(2) The report must include―

(a) findings as to the facts of the marine accident or other incident, and where the facts cannot be established with certainty, an opinion as to the most probable facts; and

(b) in the case of a marine accident, the cause or most probable cause of the accident; and

(c) any observations and recommendations to prevent the recurrence of similar marine accidents or incidents that the investigator considers should be made.

(3) The investigator may, at any time during an investigation, prepare an interim report and submit it to the Minister.

74. Representations by persons affected by report

(1) If a report, or any part of a report, relates to a person’s affairs to a material extent, the investigator must, if it is reasonable to do so, serve that person with a copy of the report or the relevant part of that report.

(2) Any such person may, within 14 days after receiving it, make written representations relating to the report or the relevant part of the report to the investigator.

(3) The investigator is to consider any such representations.

(4) The investigator―

(a) may make further investigations; and

(i) amend the report; or

(ii) make no change to the report; and

(b) is to notify the person who made the representations of the result of the person’s representations; and

(c) is to submit a final report to the Minister (setting out the substance of the representations and the conclusions and action taken by the investigator with respect to them).

75. Suspension of marine certificate pending investigation

(1) If the Minister has ordered an investigation under this division that involves any alleged incompetence or misconduct of the holder of a marine certificate, the Registrar may suspend the licence pending the investigation and determination of the matter if the Registrar has reason to believe that it would be dangerous for the holder of the licence to continue the activities authorised by the licence.

(2) A suspension under this section may not exceed 14 days.

(3) The Registrar may only extend the suspension beyond that period if authorised to do so by order of the Chief Magistrate. The Chief Magistrate may, on application by the Registrar, make such an order if satisfied there is reasonable cause to do so.

76. Action by Minister following report of investigation

(1) The Minister may take any action that is available to the Minister in connection with a report submitted by an investigator.

(2) In particular, the Minister may do any of the following

(a) take no action;

(b) take action to improve marine safety procedures;

(d) suspend or cancel a marine certificate, or impose conditions on any such certificate, for any incompetence or misconduct of the holder;

(e) inform any other marine safety authority that has granted any similar certificate to the person concerned of the report and action taken by the Minister on the report;

(f) recommend to the Crown Counsel or the Norfolk Island Police that criminal or other legal proceedings be taken against a person.

(3) Any action that may be taken by the Minister under paragraphs (2)(d) or (e) may be taken by the Registrar at the direction of the Minister.

(4) Before taking action under this section, the Minister may conduct a further investigation of the matter or refer the matter to the same or a different investigator for further investigation and report under this division.

(5) Any action taken under this section may extend to more than one marine certificate held by a person.

(6) The Minister or the Registrar must give written notice to the holder of a marine certificate of any action taken under this section against that holder, together with a copy of the final investigation report.

77. Public release of report

(1) The investigator may, at any time during the course of an investigation, make recommendations to the Minister. The Minister, subject to any requirements or advice of the officer in charge, may cause them to be made public if the Minister in accordance with the advice of the officer in charge considers that it is in the interests of marine safety and the administration of justice to do so.

(2) Subject to subsection (1), the Minister may publicly release a report (or parts of any report) made to the Minister by an investigator.

(3) The Minister is not to publicly release a report or any part of it if it might prejudice the rights of any person in any criminal proceedings instituted in connection with the matter or if it might prejudice any criminal or coronial investigation in connection with the matter.

78. Protection from liability

Civil proceedings may not be brought against the Administration, the Minister, an investigator or any person who has supplied any information to the Minister or to an investigator in connection with an investigation under this division in respect of any matter contained in that information that is or is alleged to be defamatory or a breach of confidence.

Division 4 - Investigative powers of authorised officers

79. Application of Division

(1) This division applies to the following investigations―

(a) investigations to determine whether the marine legislation has been or may be contravened; or

(b) investigations under division 3.

(2) A power conferred by this division in respect of a vessel (other than a power to detain the vessel) may be exercised for the purpose of conducting random investigations of compliance with marine safety requirements.

(3) The provisions of this division are in addition to and do not derogate from the powers in sections 6-10 of the Summary Offences Act 2005.

(4) A person can not be charged with both an offence under this Act and the Summary Offences Act 2005 if the matters constituting the alleged offence are substantially the same under each enactment.

(5) An authorised person who is a member of the Police Force exercising powers under this Act or the Summary Offences Act 2005 is taken to have acted lawfully with respect to action by the officer leading to charging a person with an offence under one Act if the officer’s actions are permissible under that Act or the other.

(6) The powers under the Customs Act 1913 or the Immigration Act 1980 of a person who is an authorised officer described in paragraphs (c) and (d) of the definition of authorised officer in subsection 4(1), are not affected by the provisions of this Act and may be exercised independently of any powers they may have under this Act.

80. Power to stop and board vessels

(1) For the purpose of conducting an investigation, an authorised officer may at any reasonable time―

(a) stop any vessel; and

(b) board any vessel; and

(d) take along any assistants or equipment required to assist the investigation.

(2) For the purpose of boarding the vessel, the authorised officer may direct the person operating the vessel to manoeuvre it in a specified manner or to a specified place or to secure it in a specified manner.

81. Other powers of entry

(1) For the purpose of conducting an investigation, an authorised officer may, at any reasonable time in the daytime or at any time when work is carried on there, enter any premises (other than premises used for residential purposes).

(2) The authorised officer is to give the occupier of premises reasonable notice of an intention to enter premises under this section unless―

(a) the entry is made with the consent of the occupier; or

(b) the entry is made to a part of the premises that is open to the public; or

(d) the giving of notice would defeat the purpose for which it is intended to exercise the power of entry.

(3) In this section, premises includes any vessel.

(4) Subject to this Act, the power to enter premises under this section includes a power to search for and to seize anything which in the opinion of the authorised officer may provide evidence of an offence under this Act, under any regulation or under any other law applicable to Norfolk Island notwithstanding the provisions of the Criminal Procedure Act 2007.

82. General investigative powers

For the purposes of conducting an investigation, the authorised officer may, in addition to any other power provided under this Act or under any other law applicable to Norfolk Island, do any of the following on any vessel boarded or premises entered under this division (or in connection with any vessel stopped but not boarded under this division)―

(a) search the vessel or premises;

(b) make inquiries of any person;

(d) examine or test any equipment or substance;

(e) take possession of any equipment or substance and detain it

(i) for examination and testing; or

(ii) to ensure that it is available for use in evidence in any proceedings for an offence;

(f) require the production of any relevant document, and take possession or copies of, or examine, the document or any entry in that document;

(g) require any person to give the investigator any facilities and assistance within that person’s control that are necessary to facilitate the conduct of the investigation.

83. Detention of vessel for purposes of investigation

(1) An authorised officer may detain a vessel for the purposes of an investigation, but only for so long as is necessary for the purposes of the investigation.

(2) An authorised officer may not detain a vessel for more than 48 hours unless authorised to do so by order of the Chief Magistrate. The Chief Magistrate may, on application by an authorised officer, make such an order if satisfied there is reasonable cause for doing so.

(3) The authorised officer may give the master or owner (or any other person) any directions required for the purpose of detaining the vessel.

84. Production of marine certificates

(1) The holder of a boat driving licence is required to carry the licence when doing anything for which the licence is required.

(2) An authorised officer may require the holder of a marine certificate who is doing anything for which the certificate is required to produce the holder’s certificate.

(3) The holder of a marine certificate (other than a boat driving licence) is not required to produce the certificate at the time the requirement is made if the holder does not have the certificate in his or her possession at the time. In that case, the holder is required to produce the certificate to an authorised officer within 24 hours or within any longer period approved by an authorised officer.

(4) An authorised officer may seize any marine certificate that has been cancelled or otherwise ceased to have effect or that the officer has reason to believe is false.

85. Identification of person suspected of committing offence

An authorised officer may require a person whom the authorised officer has reason to suspect has committed an offence against this Act to state his or her full name and residential address.

86. Identification of owner and master of vessel

(1) An authorised officer may require information about the owner or master of a vessel under this section for the purpose of an investigation.

(2) A person must, if an authorised officer requires the person to do so, supply all the information the person has regarding the identity and address of the owner or the master of a vessel.

87. Power to require persons to attend to answer questions or produce documents or other things

(1) An authorised officer may, by notice in writing, require either or both of the following―

(a) the attendance of any person at any place to answer questions at an inquiry for the purposes of an investigation;

(b) the production of any documents or other things required by the authorised officer for the purposes of the investigation.

(2) At any such inquiry, the authorised officer―

(a) is not bound by the rules of evidence; and

(b) may conduct the inquiry without regard to legal forms; and

(3) At any such inquiry, the authorised officer may administer an oath or require any statement to be verified by statutory declaration.

88. [omitted]….

89. General provisions relating to functions under this division

(1) In the exercise of a function under this division, an authorised officer is to do as little damage as possible.

(2) A requirement that an authorised officer may make under this division may specify a reasonable time within which it is to be complied with. If no such time is specified, the requirement is to be complied with as soon as practicable after it is made.

90. Offences

(1) A person must not, without reasonable excuse, prevent or obstruct any person exercising a function under this division.

(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made of the person under this division.

(3) A person must not give any information or make a statement pursuant to any requirement made under this division that the person knows is false or misleading.

Maximum penalty―50 penalty units.

Part 7  Legal proceedings

91. Penalty notices

(1) A police officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against the marine legislation, being an offence prescribed by the regulations.

(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the penalty prescribed by the regulations for the offence if dealt with under this section.

(3) A penalty notice may be served personally or by post.

(4) If the amount of the penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(5) Payment under this section is not an admission of liability for the purposes of, and does not affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(6) The regulations may―

(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence; and

(b) prescribe the amount of penalty for an offence if dealt with under this section; and

(7) The amount of penalty prescribed under this section for an offence may not exceed one half of the maximum amount of penalty that could be imposed for the offence by a court.

(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.

92. Summary proceedings for offences

Proceedings for an offence under this Act or the regulations―

(a) may be dealt with summarily before the Court of Petty Sessions;

(b) if commenced by or at the request of the Minister, Registrar, or an authorised officer shall be brought in the name of the Administration as informant.

93. Time within which proceedings may be commenced

Notwithstanding any other Act prescribing a time limit for prosecution commencement, proceedings for an offence under this Act or the regulations can not be commenced later than 2 years after the date alleged to be the date on which the offence was committed.

94. Offences by corporations

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

95. Proof of lawful or reasonable excuse

If an act or omission is, by the marine legislation, made an offence when done or omitted without lawful or reasonable excuse, proof of the lawful or reasonable excuse lies on the accused.

96. Proof of certain matters not required

(1) A certificate signed or purporting to be signed by the Registrar and stating that―

(a) a person named in the certificate was or was not at a specified time the holder of a marine certificate or exemption under the marine legislation of a specified kind; or

(b) any such certificate or exemption held by a specified person was or was not subject to a specified condition―

is admissible in any legal proceedings and is evidence of the matters stated in the certificate.

(2) In any legal proceedings under the marine legislation, proof is not required (until evidence is given to the contrary) of the following―

(a) any order or action of the Minister, the Harbour Master or the Registrar;

(b) the fact that a vessel is subject to a provision of this Act in question;

(d) the fact that the defendant is, or at any relevant time was, the owner or agent of any vessel in question;

(e) the fact that, at any relevant time, any vessel was not used solely for recreational or sporting purposes or was used for commercial purposes;

(f) the fact that any vessel was, at any relevant time, of such a tonnage or length that any provision of this Act applied to it;

(g) the appointment of any person under this Act;

(h) the fact that the defendant is, or at any relevant time was, the owner or occupier of, or in possession, control or charge of, any land or other thing in question;

(j) the fact that any land in question is, or at any relevant time was, vested in the Crown, the Administration, or any statutory body.

(3) In any legal proceedings under this Act, evidence that―

(a) a message or signal was transmitted, given or made by an authorised officer or a delegate of the Minister in the course of his or her duties; and

(b) the vessel to which the message or signal was transmitted, given or made was so located as to be able to receive the message or signal,

is evidence that the message or signal was received by the master of the vessel concerned.

97. Service of instruments (except in proceedings for offences)

(1) Any notice or other instrument issued, made or given for the purposes of the marine legislation may be served―

(a) by delivering it personally to the person to whom it is addressed; or

(b) by delivering it to the place of residence or business of the person to whom it is addressed and by leaving it there, with some person apparently over the age of 16 years, for him or her; or

(d) in any manner in which any summons or other process in any proceedings for an offence under the Court of Petty Sessions Act 1960 may be served; or

(e) if it is to be served on a person on board a vesselby transmitting its contents to the master of the vessel in any manner or by any other manner authorised by this section.

(2) For the purposes of this section, a person’s place of residence or business includes a vessel on which the person resides or works.

98. Service of summons and other process in legal proceedings

(1) Any summons or other process to be served on the owner or master of a vessel in any proceedings for an offence may be sufficiently served by serving it on the agent of the vessel in any manner in which it might otherwise have been served on the owner or master.

(2) A summons or other process so served on the agent of the vessel is taken to have been served on the owner or master of the vessel.

(3) In this section, agent of a vessel includes―

(a) the agent for the berthing or working of the vessel while it is in port; or

(b) if the vessel has left port ― that agent or, if there was another agent for the vessel when it left port, that other agent.

Part 8  Search and rescue

99. Control and management of search and rescue operations

(1) Notwithstanding the provisions of the Disaster and Emergency Management Act 2001, the provisions of this Part apply to the proper carrying out in or from Norfolk Island of operations required for the purpose of searching for or bringing to safety―

(a) persons in danger at sea;

(b) persons in need of assistance as a result of a casualty occurring at sea; or

(2) Subject to subsection (4) where it appears to the officer in charge (the officer) that circumstances have arisen in which a marine search and rescue operation should be carried out at or from Norfolk Island the officer shall take such steps as appear to him or her to be necessary and practicable to ensure that the operation is carried out.

(3) For the purpose of discharging his or her duties under this section the officer may enter into and carry out agreements or arrangements with any person for the provision of a service or the carrying out of an operation.

(4) If the officer is not also a member of the Australian Federal Police he or she shall pass responsibility for the officer’s functions under this section to an officer of the Australian Federal Police as the designated Search and Rescue mission coordinator for Norfolk Island under the Inter-Governmental Agreement on National Search and Rescue Response Arrangements made 30 June 2004 and for the purposes of this Part that officer shall have all the powers and responsibilities of the officer in charge.

(5) The officer may delegate any of his or her functions under this section to such person as the officer thinks fit.

(6) A delegation under subsection (5) is revocable at the will of the officer and does not prevent the exercise by the officer of any of the delegated functions.

100. Payments in respect of losses, etc, incurred in certain operations

(1) Where in the carrying out of an approved operation a person suffers death or injury, or loss of or damage to property, or any other financial loss the Minister may, subject to this section, pay to that person, or, if he has died, to his personal representatives, such sum as the Minister may determine in respect of that death or injury or as compensation, in whole or in part, for that loss or damage.

(2) No payment shall be made under this section except on the recommendation of the officer.

(3) Nothing in this section affects the operation of any agreement entered into under this Act.

(4) For the purposes of this section an approved operation is a marine search and rescue operation arrangement for the carrying out of which have been made by or on behalf of the officer in the exercise of his functions under this Act.

101. Recovery of cost of certain operations

(1) Where any expense is incurred under this Act by or on behalf of the officer in the carrying out of a marine search and rescue operation, the whole or a part of that expense may, in accordance with this section, be recovered from―

(a) the owner of the vessel or aircraft in relation to which the operation was carried out; or

(b) any person for the assistance of whom the operation was carried out.

(2) No sum may be recovered from a person under this section except with the approval of the Crown Counsel and the Minister given on the recommendation of the officer.

(3) A sum that is recoverable under this section may be recovered by the officer by action in a court of competent jurisdiction as a debt due to the Administration.

(4) Nothing in this section affects the law relating to salvage and no sum may be recovered under this section in respect of a service for which there is a right to a salvage reward.

Part 9  Norfolk Island Marine and Harbour Authority (NIMAHA) and Harbour Master

102. Norfolk Island Marine and Harbour Authority

(1) The Norfolk Island Marine and Harbour Authority is established.

(2) Members of the Authority are not entitled to payment of any remuneration or reimbursement of expenses for attending meetings of the Authority or attending to its business.

(3) The Chief Executive Officer may provide such accommodation, staffing and other assistance as may be reasonably required by the Authority for the conduct of its affairs.

103. Objects of the Authority

The objects of the Authority are to―

(a) advise and provide recommendations to the Minister on matters relating to Norfolk Island waters including―

(i) the establishment and use of harbours, piers and jetties;

(ii) the establishment and maintenance of safe moorings;

(iii) the designation of places for the mooring or anchorage of vessels for purposes of customs and immigration;

(iv) the designation of places for the mooring or anchorage of vessels for purposes of loading and unloading cargo and passengers;

(v) the appointment of marine safety inspectors and other persons for the purposes of this Act, other than the appointment of police officers as authorised persons.

(b) inquire into and make recommendations concerning marine safety and such other matters as the regulations may provide or as the Minister may request; and

104. The Authority

(1) The Authority consists of not more than 10 persons as follows―

(a) two persons appointed by the Minister, one of whom must be or be eligible to practise as a legal practitioner, and one with experience in maritime or harbour matters one of whom shall be designated the Chairperson and the other the Deputy Chairperson;

(b) two persons representing the Norfolk Island Fishing Association (one of whom must be the President from time to time);

(d) the Collector of Customs or the Collector’s nominee;

(e) the Immigration Officer or nominee or another person appointed by the Minister responsible for the Immigration Act 1980;

(f) the Officer in Charge of the Lighterage Service or the Officer’s nominee;

(g) one person representing the Commonwealth; and

(h) one person appointed by the Minister nominated by, and representing, commercial maritime businesses.

(2) Where a person referred to in subsection (1) the principal may be represented by a nominee, the principal must, in writing, notify the Chairperson of the appointment of a nominee.

(3) A nominee may attend and vote at meetings of the Authority at which the principal is not present.

105. Meetings and quorum

(1) The Authority shall meet at least quarterly at a time and place notified by the Chairperson.

(2) A meeting of the Authority may be adjourned from time to time.

(3) The quorum for a meeting of the Authority is 5 members present in person or by their nominee.

106. Harbour Master

(1) (a) The Chief Executive Officer shall appoint a suitably qualified person to be Harbour Master.

(b) The Harbour Master is a public sector employee.

(2) The Harbour Master shall be ex officio a member of the Authority with the right to receive notices, attend and speak at meetings of the Authority but not to vote upon any matter put to a vote of members of the Authority.

(3) The Harbour Master is, subject to this Act and the Regulations, responsible for―

(a) day to day management of the ports including―

(i) permission to enter and leave the ports;

(ii) control of ship movements entering or leaving port;

(iii) co-ordination of nautical service providers (including lighterage, supplies, fuel);

(iv) the safe loading and unloading of passengers and cargo to and from vessels;

(b) ensuring the general safety level in the port (by monitoring and enforcing port bylaws, working safety and conditions on vessels and on shore);

(d) liaising with customs, immigration and environmental protection agencies and personnel in connection with the arrival and departure of vessels from the port;

(e) ensuring compliance with dangerous goods regulations applicable to a vessel or the port;

(f) co-ordinating and/or assisting in calamity abatement;

(g) gathering information for administrative purposes.

(4) A lawful decision of the Harbour Master can only be countermanded or set aside by a direction of―

(a) a person exercising powers under the Immigration Act 1980 or the Customs Act 1913;

(b) the Minister in the exercise of a power under this or another applicable enactment;

(c) The Administrator or the Commonwealth Minister or other person in the exercise of a power under an applicable Act of the Commonwealth;

(d) the officer in charge of the Norfolk Island Police in the exercise of police powers under this or any other enactment.

107. Recommendation of the Authority

(1) The Minister is not obliged to accept all or any advice of the Authority.

(2) Nothing in this Act or in any regulation requires the Minister to obtain or first receive any advice or recommendation from the Authority before issuing any direction, making any rule or taking any action under this Act or any regulation.

Part 10  Miscellaneous

108. Delegation by Minister

(1) The Minister may, by instrument, delegate any of the powers of the Minister under this Act except this power of delegation.

(2) A delegation may be made—

(a) to a specified person; or

(b) to the holder for the time being of a specified office or position.

(3) A delegate, in making a decision in accordance with a delegation under this section, must comply with the requirements of this Act which the Minister is required to comply with in making such a decision.

109. Act binds Crown

This Act binds the Crown in right of Norfolk Island and, in so far as possible, the Crown in all its other capacities.

110. Rules

(1) The Minister may make rules with respect to―

(a) necessary skills and experience for the licensing of operators of commercial and recreational vessels;

(b) standards for safety equipment to be carried by commercial and recreational vessels and the wearing of safety devices by passengers and operators;

(c) the appointment of and qualifications required for persons providing training to persons seeking a marine certificate under regulations made for Part 4.

(2) A rule made under this section―

(a) need not be in accordance with any advice of the Authority;

(b) is not enforceable until it has been notified in the Gazette;

(d) cannot create an offence punishable by a penalty exceeding 10 penalty units.

111. Regulations

(1) The Administrator may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 100 penalty units.

112. Adoption of standards and other documents

(1) The rules or regulations may incorporate by reference, wholly or in part and with or without modification, any standards, rules, codes, specifications or methods, as in force at a particular time or as in force from time to time, prescribed or published by an authority or body (whether or not it is a Norfolk Island authority or body).

(2) Without limiting subsection (1), a rule or regulation may adopt, wholly or in part and with or without modification any Australian Standard or any standard of another country.

113. Exemptions

(1) The regulations may exempt, or provide for the exemption of, any person or vessel from any requirement of the regulations.

(2) If this Act confers a power to make regulations to exempt any person or vessel from a requirement of this Act or the regulations, the power extends to making a regulation authorising the Minister or other person to grant the exemption.

(3) An exemption granted by the regulations or by an order of the Minister or other person may be made subject to any condition specified in the regulation or order.

(4) The exemption does not apply during any period that any such relevant condition is not complied with.

Note:  Sections 11, 45, 48 and 52 make provision for the granting of exemptions.

114. Review of Act

(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible after the period of 12 months from the date of assent to this Act and a report of the outcome of the review is to be tabled in the Legislative Assembly within 3 months thereafter.

(3) Nothing in this section restricts the power of the Minister to review the Act at any time or the powers of the Authority to review and make recommendations to the Minister at any time.

Schedule 1  Powers of authorised officers

1. Powers of authorised officers

(1) An authorised officer may for the purposes of Part 3 of this Act and this Schedule exercise the following powers―

(a) direct or signal a person who is operating a vessel to manoeuvre the vessel in a specified manner or to a specified place;

(b) direct or signal a person to stop the vessel and secure it in a specified manner;

(c) board a vessel for the purpose of investigating an offence the authorised officer reasonably suspects to have been committed while the vessel was underway;

(d) require any person whom the authorised officer reasonably suspects of having committed an offence against this Schedule or the regulations or who, in the opinion of the authorised officer, is in a position to give evidence relating to the commission of an offence, to state his or her full name and residential address;

(e) require persons suspected of an offence to provide specimen of breath or blood for testing;

(f) seize anything which may afford evidence of the commission of an offence.

(2) A person who―

(a) fails or refuses to comply with a requirement under this clause; or

(b) hinders an authorised officer acting in the exercise of the officer’s powers under this clause; or

is guilty of an offence.

Maximum penalty―10 penalty units.

(3) A person is not guilty of an offence of failing or refusing to comply with a requirement under subclause (1)(c) or (d) unless it is established that the authorised officer

(a) warned the person that a failure or refusal to comply with the requirement is an offence; and

(b) identified himself or herself as an authorised officer.

2. Identification of offender

(1) If a person is reasonably suspected by an authorised officer to have committed an offence against Part 3 of this Act or this Schedule, the owner of the vessel concerned or person in charge of the vessel at the time of the alleged offence may be required to give information as to the full name and residential address of the person suspected of committing the offence and any other person may be required to give any information that may lead to the identification of the person.

(2) The owner or person in charge may be required to give the information in the form of a written statement signed by the owner or person in charge.

(3) A person who fails to comply with a requirement under this clause is guilty of an offence.

Maximum penalty―10 penalty units.

(4) A person is not guilty of an offence under this clause if it is established that the person did not know and could not with reasonable diligence have established the name and address of the person.

(5) A written statement purporting to be furnished under this clause and to contain particulars of the name and residential address of a person at the time of commission of an alleged offence against Part 3 of this Act or this Schedule is evidence in proceedings against the person that he or she was the operator of the vessel at the time of commission of the alleged offence without proof of signature if the person does not appear before the court.

Schedule 2  amendment of the Coroners Act 1993

The Coroners Act 1993 is amended as follows―

(1) Following subsection 11(1), insert―

“(1A) For purposes of clarification, subsection (1) includes an inquiry into the death of a person―

(a) within Norfolk Island waters whether the person dies or is found dead on or below the surface and whether or not on a vessel; and

(b) beyond Norfolk Island waters if―

(i) the deceased had a connection with Norfolk Island such as being a permanent resident or the holder of a permit under the Immigration Act 1980; or

(ii) the deceased had last been seen alive within Norfolk Island waters,

but only if it is more convenient to hold the inquest in Norfolk Island than in another place and no other jurisdiction claims the right to hold an inquest.”.

(2) Following subsection 13(1), insert―

“(1A) Subsection (1) includes an inquiry into the causes of a fire where property is destroyed or damaged by fire on a vessel within Norfolk Island waters.”.

NOTES

The Marine Safety Act 2013 as shown in this consolidation comprises Act No. 5 of 2013 and amendments as indicated in the Tables below.

Enactment	Number and year	Date of commencement	Application saving or transitional provision
Marine Safety Act 2013	5, 2013	s 1–24, 39–43, 59–114, Sch 1 and 2: 12.02.2013 The remainder will commence on a day or days to be fixed by notice in the Gazette.

Marine Safety (Amendment) Act 2013	13, 2013	30.08.2013 (s 2)
as amended by
Marine Safety (Amendment No. 2) Act 2013	14, 2013	30.08.2013 (s 2)

Marine Safety (Amendment No. 2) Act 2013	14, 2013	30.08.2013 (s 2)

[Previously consolidated as at 31 August 2013]

Ordinance	FRLI registration	Commencement	Application, saving and transitional provision
Norfolk Island Continued Laws Amendment Ordinance 2015 (No. 2, 2015)	17 June 2015 (F2015L00835)	Sch 1 (items 203, 204, 344, 345): 18 June 2015 (s 2(1) item 1)	Sch 1 (items 344, 345)

Table of Amendments

ad = added or inserted		am = amended		rep = repealed	rs = repealed and substituted
Provisions affected How affected
52	am		14, 2013
109	am		Ord No 2, 2015
110	am		Ord No 2, 2015