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This is a Bill, not an Act. For current law, see the Acts databases.
Marine Safety Amendment Bill 2008
No , 2008
A Bill for
An Act to amend the Marine Safety Act 1998 with respect to boating safety and
marine safety licences; and for other purposes.
Clause 1 Marine Safety Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Marine Safety Amendment Act 2008. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Marine Safety Act 1998 No 121 6
The Marine Safety Act 1998 is amended as set out in Schedule 1. 7
4 Repeal of Act 8
(1) This Act is repealed on the day following the day on which all of the 9
provisions of this Act have commenced. 10
(2) The repeal of this Act does not, because of the operation of section 30 11
of the Interpretation Act 1987, affect any amendment made by this Act. 12
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
Schedule 1 Amendments 1
(Section 3) 2
[1] Section 4 Definitions 3
Insert "and includes a fishing fleet support vessel within the meaning of that 4
Act" after "Commonwealth" in the definition of Australian fishing vessel in 5
section 4 (1). 6
[2] Section 4 (1), definition of "commercial vessel" 7
Omit the definition. Insert instead: 8
commercial vessel means: 9
(a) any vessel used or intended to be used for or in connection 10
with any business or commercial activity, including (but 11
not limited to) a vessel used or intended to be used wholly 12
or principally for: 13
(i) carrying passengers or cargo for hire or reward, 14
whether within or outside State waters or in the 15
course of overseas or interstate voyages, or 16
(ii) providing services to vessels for reward, or 17
(b) a vessel used or intended to be used by the Crown in any 18
capacity. 19
[3] Section 4 (1) 20
Insert in alphabetical order: 21
pleasure craft has the same meaning as in the Navigation Act 22
1912 of the Commonwealth. 23
[4] Section 4 (1) 24
Omit the definition of Uniform Shipping Laws Code and the note to that 25
definition. 26
[5] Section 9 27
Omit the section. Insert instead: 28
9 Application of Act to Defence Force vessels 29
(1) Except as provided by this section, this Act does not apply to or 30
in respect of a vessel belonging to the Defence Force of Australia 31
or to the naval, military or air forces of any other country. 32
(2) Parts 2 and 3, Division 4 of Part 8 and Schedule 1 apply to and in 33
respect of a vessel belonging to the Defence Force of Australia 34
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(other than a commissioned vessel) and to its master, crew and 1
passengers. 2
(3) In this section, a reference to a commissioned vessel includes a 3
reference to any vessel carried on board or launched from a 4
commissioned vessel. 5
Note. Section 31 of the Interpretation Act 1987 provides for an Act to be 6
construed so as not to exceed the legislative power of Parliament. 7
[6] Section 11 Speed limits, no wash zones and other restrictions on 8
operation of vessels in navigable waters by display of notice 9
Omit section 11 (4). Insert instead: 10
(4) A person who operates a vessel to which a notice under this 11
section applies in contravention of the notice is guilty of an 12
offence. 13
Maximum penalty: 14
(a) in the case of a notice restricting the creation of wash by 15
vessels--50 penalty units, or 16
(b) in any other case--10 penalty units. 17
[7] Section 12 Restrictions on operation of vessels in navigable waters 18
during special events by publication of notice 19
Omit section 12 (3). Insert instead: 20
(3) Such a notice is to be published: 21
(a) in a newspaper circulating throughout the State or, if the 22
Minister approves in a particular case or class of cases, in 23
a newspaper circulating in the locality concerned, and 24
(b) in such other manner as the Minister considers appropriate. 25
[8] Section 13 26
Omit the section. Insert instead: 27
13 Reckless, dangerous or negligent navigation and other acts 28
(1) A person must not operate a vessel in any navigable waters: 29
(a) negligently, or 30
(b) recklessly, or 31
(c) at a speed or in a manner dangerous to the public. 32
Maximum penalty: 33
(a) if the operation of the vessel occasions death or grievous 34
bodily harm--1,000 penalty units (where the vessel is a 35
seagoing ship), 100 penalty units (where the vessel is any 36
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Amendments Schedule 1
other commercial vessel) or 50 penalty units (where the 1
vessel is a recreational vessel), or imprisonment for 2
2 years, or both, or 3
(b) if the operation of the vessel does not occasion death or 4
grievous bodily harm--1,000 penalty units (where the 5
vessel is a seagoing ship), 100 penalty units (where the 6
vessel is any other commercial vessel) or 50 penalty units 7
(where the vessel is a recreational vessel). 8
(2) A person who is on a vessel in navigable waters, or is being towed 9
by such a vessel, must not do anything that is dangerous to the 10
public. 11
Maximum penalty: 50 penalty units. 12
(3) In considering whether an offence has been committed under this 13
section, the court is to have regard to all the circumstances of the 14
case, including the following: 15
(a) the nature and condition of the waters in which the offence 16
is alleged to have been committed, 17
(b) the amount of traffic that actually is at the time, or which 18
might reasonably be expected to be, in those waters. 19
(4) The higher maximum penalty under paragraph (a) of the 20
maximum penalty in subsection (1) does not apply unless it is 21
alleged in the charge for the offence that the conduct concerned 22
occasioned death or grievous bodily harm. 23
(5) In this section: 24
dangerous to the public includes anything that causes or is likely 25
to cause injury to any person or damage to any property. 26
grievous bodily harm includes any permanent or serious 27
disfigurement. 28
seagoing ship means a commercial vessel of more than 29
45.72 metres in length that is used or intended to be used to carry 30
cargo or passengers for hire or reward and that normally operates 31
on voyages between ports. 32
[9] Section 15A 33
Insert after section 15: 34
15A Power to give directions relating to safety on navigable waters 35
(1) An authorised officer may give a direction to a person in, on or 36
near navigable waters if the officer believes on reasonable 37
grounds that: 38
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Schedule 1 Amendments
(a) the giving of the direction is necessary to ensure the safety 1
of any person, or to prevent damage to property, in, on or 2
near navigable waters, and 3
(b) the direction is reasonable in the circumstances for 4
achieving that objective. 5
(2) A person must not fail to comply with a direction given under this 6
section to the person, whether or not the person may contravene 7
another provision of the marine legislation by obeying the 8
direction. 9
Maximum penalty: 30 penalty units. 10
(3) A person is not guilty of an offence against subsection (2) unless 11
the authorised officer: 12
(a) warned the person at the time of giving the direction that 13
failure to comply with the direction may constitute an 14
offence, and 15
(b) identified himself or herself as an authorised officer. 16
(4) It is a defence to the prosecution of a person for an offence 17
against a provision of the marine legislation if, at the time of the 18
offence, the person was obeying a direction given under this 19
section. 20
(5) Despite any other provision of this section, a direction given 21
under this section has no effect to the extent to which it is 22
inconsistent with a direction given by a harbour master under 23
Part 7. 24
(6) In this section: 25
(a) a reference to a person in, on or near navigable waters 26
includes a reference to a person on a vessel, water skis or 27
other apparatus, in, on or near navigable waters, and 28
(b) a reference to property in, on or near navigable waters 29
includes a reference to property on a vessel. 30
[10] Section 18 Regulation of organised aquatic activities in navigable waters 31
Omit the definition of aquatic activity in section 18 (1). Insert instead: 32
aquatic activity means: 33
(a) a race, competition or exhibition (whether or not involving 34
vessels or equipment) that is conducted in or on any 35
navigable waters, or 36
(b) any other activity (whether or not involving vessels or 37
equipment) that is conducted in or on any navigable waters 38
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
and that restricts the availability of those waters for normal 1
use by the public. 2
[11] Section 18 (4) 3
Insert after section 18 (3): 4
(4) A licence or other approval issued by the Minister for the 5
purposes of this section may include an exemption from a 6
requirement of this Act or the regulations in respect of any or all 7
of the following: 8
(a) the holder of the licence or approval, 9
(b) any person or class of persons involved in the conduct of, 10
or taking part in, the aquatic activity to which the licence 11
or approval relates, 12
(c) any vessel used in connection with that activity. 13
[12] Part 3 14
Omit the Part. Insert instead: 15
Part 3 Boating safety--alcohol and other drug 16
use 17
Division 1 Interpretation 18
20 Definitions 19
(1) In this Part and in Schedule 1: 20
breath analysing instrument has the same meaning as in the 21
Road Transport (Safety and Traffic Management) Act 1999. 22
breath test has the same meaning as in the Road Transport 23
(Safety and Traffic Management) Act 1999. 24
drug has the same meaning as it has in the Road Transport 25
(Safety and Traffic Management) Act 1999. 26
juvenile means a person who is not more than 16 years of age. 27
major offence means: 28
(a) the crime of murder or manslaughter or an offence against 29
section 33, 35, 53 or 54 or any other provision of the 30
Crimes Act 1900, being a crime or offence by which the 31
death of or bodily harm to another person was caused by or 32
arose out of the operation of a vessel, or 33
(b) an offence against this Part. 34
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Schedule 1 Amendments
operate a vessel includes: 1
(a) being towed by a vessel, whether on a water ski, 2
aquaplane, paraflying device or other device, or 3
(b) act as observer on a vessel, for safety purposes, of any 4
person being towed by the vessel, or 5
(c) supervise a juvenile operator of a motor vessel. 6
(2) A reference in this Part to a major offence includes a reference to 7
any such offence committed before the commencement of this 8
Part. 9
Note. A reference to a major offence includes an offence against Part 2 10
of the Marine (Boating Safety--Alcohol and Drugs) Act 1991 committed 11
before the repeal of that Act by this Act (see clause 3 of Schedule 4). 12
(3) An offence against a provision of this Part or Schedule 1 is a 13
second or subsequent offence only if, within the period of 14
5 years immediately before a person is convicted of the offence, 15
the person was convicted of another offence against the same 16
provision or of a major offence. 17
(4) An offence against a provision of this Part or Schedule 1 is a first 18
offence if it is not a second or subsequent offence. 19
21 Application of Part and Schedule 1 20
(1) This Part and Schedule 1 apply to all vessels. However, this Part 21
and Schedule 1 do not apply to a surfboard or similar device used 22
by a swimmer or surfer to support the swimmer or surfer in the 23
water (other than a sailboard or a device being towed by a vessel). 24
(2) This Part and Schedule 1 apply to a vessel only while the vessel 25
is underway. 26
(3) This Part and Schedule 1 apply to all waters, whether or not they 27
are navigable waters. 28
22 Prescribed concentrations of alcohol 29
In this Part and in Schedule 1: 30
(a) youth range prescribed concentration of alcohol means a 31
concentration of more than zero grammes, but less than 32
0.02 grammes, of alcohol in 210 litres of breath or 33
100 millilitres of blood, and 34
(b) special range prescribed concentration of alcohol means 35
a concentration of 0.02 grammes or more, but less than 36
0.05 grammes, of alcohol in 210 litres of breath or 37
100 millilitres of blood, and 38
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(c) low range prescribed concentration of alcohol means a 1
concentration of 0.05 grammes or more, but less than 2
0.08 grammes, of alcohol in 210 litres of breath or 3
100 millilitres of blood, and 4
(d) middle range prescribed concentration of alcohol means 5
a concentration of 0.08 grammes or more, but less than 6
0.15 grammes, of alcohol in 210 litres of breath or 7
100 millilitres of blood, and 8
(e) high range prescribed concentration of alcohol means a 9
concentration of 0.15 grammes or more of alcohol in 10
210 litres of breath or 100 millilitres of blood. 11
23 Measurement of alcohol concentrations 12
(1) For the purposes of this Part and Schedule 1, the concentration of 13
alcohol present in a person's breath or blood may be expressed as 14
follows: 15
(a) in the case of a sample of breath that is measured by a 16
breath analysing instrument or other breath testing device 17
that provides a reading or result by reference to alcohol 18
present in the breath--the amount of alcohol in grammes 19
in 210 litres of breath, 20
(b) in the case of a sample of breath that is measured by a 21
breath analysing instrument or other breath testing device 22
that provides a reading or result by reference to alcohol 23
present in the blood--the amount of alcohol in grammes in 24
100 millilitres of blood, 25
(c) in the case of a sample of blood--the amount of alcohol in 26
grammes in 100 millilitres of blood. 27
(2) An amount of alcohol in grammes present in breath when 28
measured by reference to 210 litres of breath is equivalent to the 29
same amount of alcohol in grammes present in blood when 30
measured by reference to 100 millilitres of blood. 31
(3) Accordingly, any offence under this Part relating to the presence 32
of a specified concentration of alcohol in a person's breath or 33
blood at the time of the occurrence of a particular event is a single 34
offence regardless of whether the concentration of alcohol 35
concerned is measured by reference to the amount of alcohol 36
present in breath or in blood (or both). 37
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Schedule 1 Amendments
Division 2 Offences involving prescribed 1
concentrations of alcohol 2
24 Presence of prescribed concentration of alcohol in person's 3
breath or blood 4
(1) Offence--youth range prescribed concentration of alcohol 5
A person who is under 18 years of age must not operate a vessel 6
in any waters while there is present in his or her breath or blood 7
the youth range prescribed concentration of alcohol. 8
Maximum penalty: 10 penalty units (in the case of a first offence) 9
or 20 penalty units (in the case of a second or subsequent 10
offence). 11
(2) Offence--special range prescribed concentration of alcohol 12
A person must not operate a vessel in any waters while there is 13
present in his or her breath or blood the special range prescribed 14
concentration of alcohol if: 15
(a) the person is under 18 years of age, or 16
(b) the person is operating the vessel for commercial purposes. 17
Maximum penalty: 10 penalty units (in the case of a first offence) 18
or 20 penalty units (in the case of a second or subsequent 19
offence). 20
(3) Offence--low range prescribed concentration of alcohol 21
A person must not operate a vessel in any waters while there is 22
present in his or her breath or blood the low range prescribed 23
concentration of alcohol. 24
Maximum penalty: 10 penalty units (in the case of a first offence) 25
or 20 penalty units (in the case of a second or subsequent 26
offence). 27
(4) Offence--middle range prescribed concentration of alcohol 28
A person must not operate a vessel in any waters while there is 29
present in his or her breath or blood the middle range prescribed 30
concentration of alcohol. 31
Maximum penalty: 20 penalty units or imprisonment for 32
9 months or both (in the case of a first offence) or 30 penalty units 33
or imprisonment for 12 months or both (in the case of a second or 34
subsequent offence). 35
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Amendments Schedule 1
(5) Offence--high range prescribed concentration of alcohol 1
A person must not operate a vessel in any waters while there is 2
present in his or her breath or blood the high range prescribed 3
concentration of alcohol. 4
Maximum penalty: 30 penalty units or imprisonment for 5
18 months or both (in the case of a first offence) or 50 penalty 6
units or imprisonment for 2 years or both (in the case of a second 7
or subsequent offence). 8
25 Alternative verdicts for lesser offences 9
(1) Alternative verdict for lesser offence in prosecution for middle 10
range prescribed concentration of alcohol 11
If, on a prosecution of a person for an offence under 12
section 24 (4), the court is satisfied that, at the time the person 13
operated the vessel, there was not present in the person's breath 14
or blood the middle range prescribed concentration of alcohol but 15
there was present in the person's breath or blood the low range 16
prescribed concentration of alcohol, the court may convict the 17
person of an offence under section 24 (3). 18
(2) Alternative verdict for lesser offence in prosecution for high 19
range prescribed concentration of alcohol 20
If, on a prosecution of a person for an offence under 21
section 24 (5), the court is satisfied that, at the time the person 22
operated the vessel, there was not present in the person's breath 23
or blood the high range prescribed concentration of alcohol: 24
(a) if the court is satisfied that the middle range prescribed 25
concentration of alcohol was present in the person's breath 26
or blood--the court may convict the person of an offence 27
under section 24 (4), or 28
(b) if the court is satisfied that the low range prescribed 29
concentration of alcohol was present in the person's breath 30
or blood--the court may convict the person of an offence 31
under section 24 (3). 32
(3) Alternative verdict for lesser offence in prosecution of special 33
category persons 34
If, on a prosecution of a person for an offence under section 35
24 (3), (4) or (5), the court is satisfied that, at the time the person 36
operated the vessel: 37
(a) the person was under 18 years of age or the person was 38
operating the vessel for commercial purposes, and 39
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(b) there was not present in the person's breath or blood the 1
high range prescribed concentration of alcohol, the middle 2
range prescribed concentration of alcohol or the low range 3
prescribed concentration of alcohol, but that there was 4
present in the person's breath or blood the special range 5
prescribed concentration of alcohol, 6
the court may convict the person of an offence under 7
section 24 (2). 8
(4) Alternative verdict for lesser offence in prosecution of persons 9
under 18 10
If, on a prosecution of a person for an offence under 11
section 24 (2), (3), (4) or (5), the court is satisfied that, at the time 12
the person was operating the vessel: 13
(a) the person was under 18 years of age, and 14
(b) there was not present in the person's breath or blood the 15
high range prescribed concentration of alcohol, the middle 16
range prescribed concentration of alcohol, the low range 17
prescribed concentration of alcohol or the special range 18
prescribed concentration of alcohol, but that there was 19
present in the person's breath or blood the youth range 20
prescribed concentration of alcohol, 21
the court may convict the person of an offence under 22
section 24 (1). 23
26 Presence of higher concentration of alcohol not defence 24
(1) It is not a defence to a prosecution for an offence under 25
section 24 (1) if the defendant proves that, at the time he or she 26
was operating the vessel, there was present in the defendant's 27
breath or blood a concentration of alcohol of 0.02 grammes or 28
more in 210 litres of breath or 100 millilitres of blood. 29
(2) It is not a defence to a prosecution for an offence under 30
section 24 (2) if the defendant proves that, at the time he or she 31
was operating the vessel, there was present in the defendant's 32
breath or blood a concentration of alcohol of 0.05 grammes or 33
more in 210 litres of breath or 100 millilitres of blood. 34
(3) It is not a defence to a prosecution for an offence under 35
section 24 (3) if the defendant proves that, at the time he or she 36
was operating the vessel, there was present in the defendant's 37
breath or blood a concentration of alcohol of 0.08 grammes or 38
more in 210 litres of breath or 100 millilitres of blood. 39
(4) It is not a defence to a prosecution for an offence under 40
section 24 (4) if the defendant proves that, at the time he or she 41
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Amendments Schedule 1
was operating the vessel, there was present in the defendant's 1
breath or blood a concentration of alcohol of 0.15 grammes or 2
more in 210 litres of breath or 100 millilitres of blood. 3
27 Defence for offence relating to youth range prescribed 4
concentration of alcohol 5
It is a defence to a prosecution for an offence under section 24 (1) 6
if the defendant proves that, at the time the defendant was 7
operating the vessel, the presence in the defendant's breath or 8
blood of the youth range prescribed concentration of alcohol was 9
not caused (in whole or in part) by any of the following: 10
(a) the consumption of an alcoholic beverage (otherwise than 11
for the purposes of religious observance), 12
(b) the consumption or use of any other substance (for 13
example, food or medicine) for the purpose of consuming 14
alcohol. 15
Division 3 Offences involving operating a vessel under 16
the influence of alcohol or other drug 17
28 Operating vessel under influence of alcohol or other drug 18
(1) A person must not operate a vessel in any waters while under the 19
influence of alcohol or any other drug. 20
Maximum penalty: 15 penalty units. 21
(2) The master of a vessel must not permit a person to operate in any 22
waters a vessel in the charge of the master if the master is aware, 23
or has reasonable cause to believe, that the person is under the 24
influence of alcohol or any other drug. 25
Maximum penalty: 15 penalty units. 26
(3) If a person is charged with an offence under this section: 27
(a) the court attendance notice may allege the person was 28
under the influence of more than one drug and is not liable 29
to be dismissed on the ground of uncertainty or duplicity if 30
each of those drugs is described in the court attendance 31
notice, and 32
(b) the offence is proved if the court is satisfied beyond 33
reasonable doubt that the defendant was under the 34
influence of: 35
(i) a drug described in the court attendance notice, or 36
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(ii) a combination of drugs any one or more of which 1
was or were described in the court attendance 2
notice. 3
Division 4 Related matters 4
28A Cancellation and suspension of marine safety licences 5
(1) If a person is convicted of an offence against this Part in relation 6
to the operation of a vessel and, at the time the offence was 7
committed, the person was required by or under this Act to hold 8
a marine safety licence in order to operate the vessel, the court 9
may, by order: 10
(a) cancel or suspend the licence, and 11
(b) disqualify the convicted person from holding or obtaining 12
a marine safety licence for a period specified by the court. 13
(2) The holder of a marine safety licence referred to in subsection (1) 14
who is convicted of an offence under this Part (the convicted 15
person) is automatically disqualified from holding or obtaining 16
such a licence for a period of: 17
(a) 3 months--if during the period of 5 years before the 18
conviction he or she has not been convicted of any other 19
major offence, or 20
(b) 12 months--if during the period of 5 years before the 21
conviction he or she has been convicted of any other major 22
offence. 23
(3) However, the court before which the person is convicted may 24
order that the convicted person be disqualified under 25
subsection (2) for a shorter period specified in the order. 26
(4) Any disqualification under this section is in addition to any 27
penalty imposed for the offence. 28
28B Application of section 10 of Crimes (Sentencing Procedure) Act 29
1999 30
(1) The provisions of section 10 of the Crimes (Sentencing 31
Procedure) Act 1999 do not apply to or in respect of a person who 32
is charged with an alcohol or drug offence if, at the time of or 33
during the period of 5 years immediately before the court's 34
determination in respect of the charge (whether such period 35
commenced before or after the commencement of this section), 36
the provisions of that section are or have been applied to or in 37
respect of the person in respect of a charge for another alcohol or 38
drug offence (whether of the same or a different kind). 39
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(2) In this section: 1
alcohol or drug offence means an offence under section 24 or 28 2
or an offence of aiding, abetting, counselling or procuring the 3
commission of such an offence. 4
28C Random breath testing and other matters related to alcohol and 5
drug use 6
Schedule 1 has effect. 7
[13] Section 29 Types of marine safety licences 8
Omit section 29 (c). 9
[14] Section 29 (g1) 10
Insert after section 29 (g): 11
(g1) certificate of local knowledge--being a marine safety 12
licence that exempts a vessel whose master is the holder of 13
the certificate from compulsory pilotage under Part 6, 14
[15] Section 34 Fees for licences 15
Omit the section. 16
[16] Section 36 Special provision relating to marine pilot's licence, marine 17
pilotage exemption certificate and certificate of local knowledge 18
Omit "or marine pilotage exemption certificate". 19
Insert instead ", marine pilotage exemption certificate or certificate of local 20
knowledge". 21
[17] Section 37 Regulations relating to licences 22
Insert before section 37 (2) (a): 23
(a1) requiring a marine safety licence for the carrying out of 24
any activity, or in relation to any other thing, that may be 25
regulated under this Act, 26
[18] Section 37 (2) (k) and (l) 27
Omit section 37 (2) (k). Insert instead: 28
(k) fees and charges payable in connection with licences and 29
applications for licences, including in relation to the 30
inspection of vessels, 31
(l) the suspension and cancellation of marine safety licences, 32
and the disqualification of persons from holding or 33
obtaining marine safety licences. 34
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Schedule 1 Amendments
[19] Section 38 1
Omit the section. Insert instead: 2
38 Suspension or cancellation of licences or disqualification of 3
persons from holding licences 4
(1) The Minister may suspend or cancel a marine safety licence, or 5
disqualify a person from holding or obtaining a marine safety 6
licence for a specified period: 7
(a) in accordance with section 111, or 8
(b) if the person concerned is not qualified, or is no longer 9
qualified, to hold the licence, or 10
(c) in such other circumstances as may be prescribed by the 11
regulations. 12
(2) The Minister may at any time remove the suspension of a marine 13
safety licence, or a disqualification, imposed by the Minister 14
under this section. 15
[20] Section 42 Rights of review 16
Omit section 42 (b). Insert instead: 17
(b) the imposition of conditions or any other limitation or 18
restriction on the person's marine safety licence (otherwise 19
than by regulation), 20
[21] Section 44 Definition of "unsafe vessel" 21
Omit "a danger to human life". 22
Insert instead "likely to endanger any person". 23
[22] Section 45 Owner or master not to operate unsafe vessel 24
Omit section 45 (1) and (2). Insert instead: 25
(1) The owner of a vessel must not operate the vessel if the owner 26
knows, or ought reasonably to know, that it is an unsafe vessel. 27
Maximum penalty: 400 penalty units or 2 years imprisonment, or 28
both. 29
(2) The master of a vessel must not operate a vessel if the master 30
knows, or ought reasonably to know, that it is an unsafe vessel. 31
Maximum penalty: 400 penalty units or 2 years imprisonment, or 32
both. 33
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Amendments Schedule 1
[23] Section 50 Vessels exempt from registration 1
Insert ", a commercial vessel that is an Australian fishing vessel or a pleasure 2
craft" after "recreational vessel" in section 50 (1). 3
[24] Section 51 Offence to operate unregistered vessel 4
Omit "50 penalty units". Insert instead "75 penalty units". 5
[25] Part 5, Division 3, heading 6
Insert "and other requirements" after "certificates". 7
[26] Sections 53 and 53A 8
Omit section 53. Insert instead: 9
53 Vessels to which this Division applies 10
(1) This Division applies to commercial vessels operating in State 11
waters. 12
(2) This Division extends to: 13
(a) a commercial vessel that is an Australian fishing vessel or 14
a pleasure craft while it is operating outside State waters, 15
and 16
(b) any other commercial vessel while it is operating outside 17
State waters but only if it is proceeding on a voyage that is 18
not an overseas or interstate voyage. 19
53A Offence to operate commercial vessel not complying with certain 20
requirements 21
(1) The owner of a commercial vessel must not operate the vessel 22
unless: 23
(a) the vessel complies with the requirements prescribed by 24
the regulations relating to the design, construction or 25
equipment of any such vessel, and 26
(b) if required by the regulations, has a survey certificate 27
under this Act. 28
Maximum penalty: 100 penalty units. 29
(2) The master of a commercial vessel must not operate the vessel 30
unless: 31
(a) the vessel complies with the requirements prescribed by 32
the regulations relating to the design, construction or 33
equipment of any such vessel, and 34
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Schedule 1 Amendments
(b) if required by the regulations, has a survey certificate 1
under this Act. 2
Maximum penalty: 100 penalty units. 3
(3) It is a defence to a prosecution under subsection (2) if the master 4
establishes that he or she did not have any reasonable cause to 5
believe that: 6
(a) the vessel did not comply with the requirements referred to 7
in subsection (2) (a) or did not have a survey certificate 8
under this Act, as the case may be, or 9
(b) any condition of an exemption granted in respect of the 10
vessel for the purposes of this section was not being 11
complied with at the relevant time. 12
Note. Section 139 (4) provides that an exemption granted by the 13
regulations or by order of the Minister does not apply during any period 14
that any condition to which the exemption is subject is not complied with. 15
(4) The regulations may exempt any class of vessels from any of the 16
requirements of subsections (1) and (2). 17
(5) The Minister may exempt a vessel from any of the requirements 18
of subsections (1) and (2) by order in writing given to the owner 19
or master of the vessel or by a condition of the vessel's 20
registration under this Act. 21
Note. A survey certificate for a vessel is a marine safety licence--Part 4 22
deals with the grant of, and other matters relating to, any such licence. 23
A contravention of the conditions of such a licence by the holder is an 24
offence--see section 32. 25
[27] Section 54 Grant of survey certificate and survey schedule for 26
commercial vessels 27
Omit "and that the vessel is safe to operate" from section 54 (1). 28
[28] Section 54 (2) 29
Omit the subsection. 30
[29] Section 55 Accredited surveyors of commercial vessels 31
Omit the section. 32
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Amendments Schedule 1
[30] Section 56 1
Omit the section. Insert instead: 2
56 Regulations relating to commercial vessels--construction, survey 3
and other matters 4
The regulations may make provision for or with respect to the 5
following: 6
(a) the construction, design, equipment, deck or load lines, 7
survey, identification of and inspection of, and any other 8
matter relating to, commercial vessels to which this 9
Division applies, 10
(b) the manner in which any matter referred to in paragraph (a) 11
is to be determined, 12
(c) applications for determinations or approvals under this Act 13
in respect of a matter referred to in paragraph (a), and 14
appeals and reviews of decisions made in respect of such 15
applications (including enabling a person to apply for a 16
review of any such decision to the Administrative 17
Decisions Tribunal), 18
(d) fees in relation to any such application, appeal or review. 19
[31] Section 57 Vessels to which this Division applies 20
Omit section 57 (1). Insert instead: 21
(1) This Division applies to commercial vessels operating in State 22
waters. 23
(1A) This Division extends to: 24
(a) a commercial vessel that is an Australian fishing vessel or 25
a pleasure craft while it is operating outside State waters, 26
and 27
(b) any other commercial vessel while it is operating outside 28
State waters but only if it is proceeding on a voyage that is 29
not an overseas or interstate voyage. 30
[32] Section 59A 31
Insert after section 59: 32
59A Offences committed by disqualified holders of certificates of 33
competency 34
(1) A person who is disqualified by or under any Act from holding or 35
obtaining a certificate of competency must not: 36
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(a) operate a commercial vessel to which this Division applies 1
during the period of disqualification, or 2
(b) make an application for a certificate of competency during 3
the period of disqualification and in respect of the 4
application state his or her name falsely or incorrectly or 5
omit to mention the disqualification. 6
Maximum penalty: 100 penalty units or imprisonment for 7
18 months or both (in the case of a first offence) or 125 penalty 8
units or imprisonment for 2 years or both (in the case of a second 9
or subsequent offence). 10
(2) Subsection (1) does not apply to the operation of a vessel in 11
circumstances prescribed by the regulations. 12
(3) An offence under this section is a second or subsequent offence 13
for the purposes of this section if it is the second or subsequent 14
occasion on which the person is convicted of any offence under 15
subsection (1) within the period of 5 years immediately before 16
the person is convicted of the offence. 17
(4) If a person is convicted by a court of an offence under 18
subsection (1), the person: 19
(a) is disqualified by the conviction (and without any specific 20
order) for the relevant disqualification period from the date 21
of expiration of the existing disqualification or suspension 22
or from the date of such conviction, whichever is the later, 23
from holding a certificate of competency, and 24
(b) may also be disqualified, for such additional period as the 25
court may order, from holding a certificate of competency. 26
(5) The disqualification referred to in subsection (4) is in addition to 27
any penalty imposed for the offence. 28
(6) Subsection (1) applies to a person who is disqualified from 29
holding a certificate of competency by a court in Australia or 30
under any law in this State or another State or Territory. 31
(7) In this section, the relevant disqualification period is: 32
(a) in the case of a first offence under subsection (1)-- 33
12 months, or 34
(b) in the case of a second or subsequent offence under 35
subsection (1)--2 years. 36
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
[33] Section 60 1
Omit the section. Insert instead: 2
60 Crewing of commercial vessels to which this Division applies 3
The regulations may make provision for or with respect to the 4
following: 5
(a) the crew to be carried in a commercial vessel to which this 6
Division applies, 7
(b) the manner in which the number and type of crew to be 8
carried in a commercial vessel to which this Division 9
applies are to be determined, 10
(c) the constitution of safety crewing committees and the 11
functions to be exercised by such committees, 12
(d) applications for determinations or approvals under this Act 13
relating to the crew to be carried in a commercial vessel to 14
which this Division applies, and appeals and reviews of 15
decisions made in respect of such applications (including 16
enabling a person to apply for a review of any such 17
decision to the Administrative Decisions Tribunal), 18
(e) fees in relation to any such application, appeal or review, 19
(f) the keeping of records in relation to the crew carried in a 20
commercial vessel to which this Division applies and the 21
production and inspection of any such records. 22
[34] Section 63 23
Omit the section. Insert instead: 24
63 Offence to operate recreational vessel without appropriate boat 25
driving licence 26
A person must not operate a recreational vessel to which this 27
Division applies as its master unless the person is the holder of a 28
boat driving licence under this Act of an appropriate type which 29
authorises the person to operate the vessel. 30
Maximum penalty: 15 penalty units. 31
Note. A boat driving licence is a marine safety licence--Part 4 deals with 32
the grant of, and other matters relating to, any such licence. 33
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
[35] Section 63A 1
Insert after section 63: 2
63A Offences committed by disqualified holders of boat driving 3
licences 4
(1) A person who is disqualified by or under any Act from holding or 5
obtaining a boat driving licence under this Act must not: 6
(a) operate a recreational vessel to which this Division applies 7
as its master during the period of disqualification, or 8
(b) make an application for a boat driving licence under this 9
Act during the period of disqualification and in respect of 10
the application state his or her name falsely or incorrectly 11
or omit to mention the disqualification. 12
Maximum penalty: 100 penalty units or imprisonment for 13
18 months or both (in the case of a first offence) or 125 penalty 14
units or imprisonment for 2 years or both (in the case of a second 15
or subsequent offence). 16
(2) Subsection (1) does not apply to the operation of a vessel in 17
circumstances prescribed by the regulations. 18
(3) An offence under this section is a second or subsequent offence 19
for the purposes of this section if it is the second or subsequent 20
occasion on which the person is convicted of any offence under 21
subsection (1) within the period of 5 years immediately before 22
the person is convicted of the offence. 23
(4) If a person is convicted by a court of an offence under 24
subsection (1), the person: 25
(a) is disqualified by the conviction (and without any specific 26
order) for the relevant disqualification period from the date 27
of expiration of the existing disqualification or suspension 28
or from the date of such conviction, whichever is the later, 29
from holding a boat driving licence under this Act, and 30
(b) may also be disqualified, for such additional period as the 31
court may order, from holding a boat driving licence under 32
this Act. 33
(5) The disqualification referred to in subsection (4) is in addition to 34
any penalty imposed for the offence. 35
(6) Subsection (1) applies to a person who is disqualified from 36
holding a boat driving licence by a court in Australia or under any 37
law in this State or another State or Territory. 38
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(7) In this section, the relevant disqualification period is: 1
(a) in the case of a first offence under subsection (1)-- 2
12 months, or 3
(b) in the case of a second or subsequent offence under 4
subsection (1)--2 years. 5
[36] Section 64 Exemption from requirement to hold boat driving licence 6
Omit section 64 (1) (c). Insert instead: 7
(c) is authorised under the law of another State or a Territory 8
to operate the vessel concerned (being an authorisation that 9
is not suspended) and is operating the vessel in accordance 10
with the conditions of that authorisation. 11
[37] Section 64 (1A) 12
Insert after section 64 (1): 13
(1A) Subsection (1) does not exempt a person from the requirement to 14
hold a boat driving licence if: 15
(a) the person holds a boat driving licence that is suspended, 16
or 17
(b) the person has held a boat driving licence that has been 18
cancelled and the person is disqualified from applying for 19
another such licence. 20
[38] Section 67 21
Omit the section. Insert instead: 22
67 Regulation of marine safety equipment or facilities 23
The regulations may make provision for or with respect to the 24
following: 25
(a) the installation or carriage on vessels of marine safety 26
equipment or facilities, 27
(b) the wearing of safety equipment by persons on vessels or 28
engaged in activities in or over the water. 29
[39] Section 68A 30
Insert after section 68: 31
68A Regulations relating to builders plates for vessels 32
(1) Regulations may be made for or with respect to builders plates to 33
be fixed on vessels. 34
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(2) Without limiting the generality of subsection (1), the regulations 1
may make provision for or with respect to the following: 2
(a) prohibiting or regulating the sale or supply of vessels in 3
New South Wales without builders plates, 4
(b) the information to be included on builders plates for 5
vessels, the form of such plates and the manner in which 6
they are to be fixed to vessels, 7
(c) the persons who may fix builders plates to vessels, 8
(d) the alteration and removal of builders plates. 9
[40] Section 71 Definitions 10
Omit the definition of pilotage from section 71 (1). Insert instead: 11
pilotage means the conduct of a vessel by a pilot as follows: 12
(a) inward pilotage, that is, the pilotage of a vessel entering 13
into a pilotage port from the time at which the vessel 14
crosses the port limit until the vessel is at anchor or made 15
fast to the shore, 16
(b) outward pilotage, that is, the pilotage of a vessel leaving a 17
pilotage port from the time at which the vessel is no longer 18
at anchor or made fast to the shore until the vessel is clear 19
of the port limit, 20
(c) harbour pilotage, that is, the pilotage of a vessel being 21
moved within a pilotage port from the time at which the 22
vessel is no longer at anchor or made fast to the shore until 23
the vessel is at anchor or made fast to the shore. 24
[41] Section 72 Marine pilots in any port to be licensed 25
Insert at the end of section 72: 26
(2) An unlicensed person does not commit an offence against 27
subsection (1) if the person is training as a marine pilot and is 28
acting under the direct supervision of the holder of a marine 29
pilot's licence under this Act that applies to the port concerned. 30
[42] Section 73 31
Omit the section. Insert instead: 32
73 Marine pilots in pilotage ports to be provided by pilotage service 33
provider 34
A person must not act as the marine pilot of a vessel in a pilotage 35
port unless: 36
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(a) in a case where the pilotage service provider is the 1
Minister, the person has been authorised by the Minister to 2
act as a marine pilot in that pilotage port, or 3
(b) in any other case, the person is employed or engaged by the 4
pilotage service provider. 5
Maximum penalty: 100 penalty units. 6
[43] Section 74 Pilotage compulsory in pilotage ports 7
Insert after section 74 (2): 8
(2A) Subsection (2) does not apply to the movement of a vessel if: 9
(a) approval for the movement of the vessel was obtained 10
from the harbour master for the port concerned before the 11
vessel was moved, and 12
(b) the movement of the vessel was recorded in the vessel's 13
log. 14
[44] Section 75 Vessels exempted from compulsory pilotage 15
Insert after section 75 (1) (a): 16
(a1) a vessel whose master is the holder of a certificate of local 17
knowledge under this Act that applies to that port and 18
vessel, 19
[45] Section 75 (2) 20
Insert "or certificate of local knowledge" after "certificate". 21
[46] Section 80 Immunity of State, marine pilots, pilotage service provider 22
and others 23
Insert after section 80 (2): 24
(3) A reference to a person made available to act as a marine pilot by 25
a pilotage service provider includes a reference to a person who 26
is in training as a marine pilot and acting under the direct 27
supervision of the person made available to act as a marine pilot 28
by the pilotage service provider. 29
[47] Section 81A 30
Insert after section 81: 31
81A Marine pilot to notify certain matters to harbour master 32
It is the duty of a person acting as a marine pilot for a vessel under 33
this Part to immediately notify the harbour master of the port 34
concerned if the master of the vessel does not ensure the carrying 35
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
out of any order of the person in relation to the conduct of the 1
vessel while under that pilotage. 2
[48] Section 83 Regulations 3
Insert at the end of section 83: 4
(2) The regulations relating to pilotage and marine pilots' licences 5
may apply, adopt or incorporate by reference wholly or partly, 6
and with or without modification, any document published by the 7
Minister in the Gazette or on the website of the Maritime 8
Authority as in force at a particular time or as in force from time 9
to time. 10
[49] Section 85 11
Omit the section. Insert instead: 12
85 Appointment of harbour masters 13
(1) The Minister may appoint a person to be the harbour master for 14
any port. 15
(2) Two or more persons cannot be appointed as harbour masters for 16
the same port. 17
(3) The Minister may revoke the appointment of a harbour master at 18
any time. 19
[50] Section 86 Appointment of persons to exercise functions of harbour 20
masters 21
Insert after section 86 (5): 22
(6) More than one person may be appointed at any one time under 23
this section to exercise the functions of a harbour master. 24
[51] Section 91A 25
Insert after section 91: 26
91A Directions of harbour master acting as marine pilot 27
(1) Nothing prevents a harbour master who is acting as a marine pilot 28
for a vessel from giving a direction under this Part in relation to 29
the vessel. 30
(2) However, any such direction is taken not to be properly given 31
under this Part unless the person giving the direction has warned 32
the person to whom it is given that it is a direction of the harbour 33
master and that failure to comply with the direction may 34
constitute an offence under section 91. 35
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Amendments Schedule 1
[52] Section 97A 1
Insert after section 97: 2
97A Obstruction of authorised officers and others 3
A person must not, without reasonable excuse, prevent or 4
obstruct any authorised officer or other person in the exercise of 5
a function under this Act. 6
Maximum penalty: 50 penalty units. 7
[53] Section 111 Action by Minister following report of investigation 8
Insert after section 111 (2) (d): 9
(d1) disqualify a person from holding or obtaining a marine 10
safety licence for a specified period, 11
[54] Section 121 Identification of owner and master of vessel 12
Insert after section 121 (2): 13
(3) Without limiting subsection (2), an authorised officer may 14
require the owner of a vessel to supply a written statement 15
containing the identity and address of the master of the vessel. 16
Any such written statement is admissible in any proceedings as 17
evidence (without proof of signature) of the identity and address 18
of the master of the vessel concerned. 19
(4) Without limiting subsection (2), an authorised officer may 20
require the master of a vessel to supply a written statement 21
containing the identity and address of the owner of the vessel. 22
Any such written statement is admissible in any proceedings as 23
evidence (without proof of signature) of the identity and address 24
of the owner of the vessel concerned. 25
[55] Section 125 Offences 26
Omit section 125 (1). 27
[56] Part 8, Division 5, heading 28
Omit the heading. Insert instead: 29
Division 5 Regulation of public ferry wharves 30
[57] Section 125A Public ferry wharves 31
Insert at the end of the section: 32
Note. The terms ferry and public passenger service are defined in 33
section 94 (1) to have the same meanings as they have in the Passenger 34
Transport Act 1990. 35
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
[58] Section 125B Inspections of public ferry wharves 1
Omit section 125B (4). 2
[59] Section 125C Improvement notices 3
Insert after section 125C (5): 4
(6) An improvement notice may be varied at the request of, or with 5
the consent of, the person to whom it is given. 6
[60] Section 125J Withdrawal and revocation of notices 7
Omit ", if satisfied that the notice was given in error or is incorrect in some 8
respect" from section 125J (1). 9
[61] Sections 125L and 125M 10
Insert after section 125K: 11
125L Certificates relating to public ferry wharves 12
(1) For the purposes of carrying out functions under this Division in 13
relation to public ferry wharves, the Minister may, by notice in 14
writing, direct the owner or person responsible for the 15
maintenance of any such wharf to provide to the Minister a report 16
from an appropriately qualified person as to the condition of the 17
wharf within the time specified in the notice. 18
(2) If a person is directed under this section to provide a report within 19
a specified time and the report is not provided within that time, 20
the Minister may obtain such a report and may recover from the 21
person as a debt in any court of competent jurisdiction the 22
reasonable charges and expenses incurred in obtaining the report. 23
125M Regulations relating to public ferry wharves 24
(1) The regulations may make provision for or with respect to any of 25
the following: 26
(a) the inspection of public ferry wharves under this Division, 27
(b) the methodology or standards with which inspections must 28
comply, 29
(c) the provision of inspection reports to persons, 30
(d) the procedures with respect to responses to inspection 31
reports, 32
(e) requirements relating to the maintenance and standards of 33
construction of public ferry wharves, 34
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(f) requirements relating to the preparation of maintenance 1
plans for public ferry wharves and the reporting on and 2
keeping of records in respect of such plans. 3
(2) The regulations under this section may apply, adopt or 4
incorporate by reference wholly or partly, and with or without 5
modification, any document published by the Minister in the 6
Gazette or on the website of the Maritime Authority as in force at 7
a particular time or as in force from time to time. 8
[62] Section 127 9
Omit the section. Insert instead: 10
127 Offences 11
(1) Proceedings for an offence against this Act or the regulations are 12
to be disposed of summarily before: 13
(a) a Local Court, or 14
(b) the Supreme Court in its summary jurisdiction. 15
(2) If proceedings are brought before a Local Court, the maximum 16
monetary penalty that the Local Court may impose for the 17
offence is 100 penalty units, despite any higher maximum 18
monetary penalty provided in respect of the offence. 19
[63] Section 133 Proof of certain matters not required 20
Insert at the end of section 133 (1) (b): 21
, or 22
(c) any such licence that had been suspended or cancelled has 23
not been delivered to the Minister, 24
[64] Section 133 (2) (c) 25
Insert "or operator" after "master". 26
[65] Section 133 (2) (l) 27
Insert after section 133 (2) (k): 28
(l) the times of sunrise and sunset on any day as published in 29
a statement in a newspaper circulating throughout New 30
South Wales. 31
[66] Section 134 Service of instruments (except in proceedings for offences) 32
Omit "summons" wherever occurring. 33
Insert instead "court attendance notice". 34
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
[67] Section 135 Service of court attendance notice and other process in 1
legal proceedings 2
Omit "summons" wherever occurring. 3
Insert instead "court attendance notice". 4
[68] Section 136A 5
Insert after section 136: 6
136A Minister or Maritime Authority may rely on advice 7
(1) In exercising any function under this Act or the regulations, the 8
Minister or the Maritime Authority is entitled to rely (wholly or 9
partly) on a certificate, report or other form of advice obtained 10
from an appropriately qualified person engaged for that purpose. 11
(2) The Minister, the State, the Maritime Authority and any person 12
acting on behalf of the Minister, the State or the Maritime 13
Authority do not incur any liability as a consequence of the 14
Minister or the Maritime Authority being satisfied of a matter by 15
relying on advice referred to in this section. 16
[69] Section 137 Regulations 17
Insert after section 137 (1): 18
(1A) The regulations may make provision for or with respect to fees 19
and charges for services provided under this Act, including 20
prescribing the basis on which any such fee or charge is to be 21
determined and the waiver of any such fees or charges. 22
[70] Section 137 (3) 23
Insert after section 137 (2): 24
(3) A regulation that provides for an application to be made to the 25
Administrative Decisions Tribunal for the review of a decision 26
may be made only with the concurrence of the Minister 27
administering the Administrative Decisions Tribunal Act 1997. 28
[71] Section 138 Adoption of codes, standards, treaties and other documents 29
Insert "by whatever means" after "published" in section 138 (1). 30
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
[72] Section 138 (2) and (3) 1
Omit section 138 (2). Insert instead: 2
(2) Without limiting subsection (1), a regulation may adopt, wholly 3
or in part and with or without modification any of the following 4
documents as in force at a particular time or as in force from time 5
to time: 6
(a) the National Standard for Commercial Vessels adopted by 7
the Australian Transport Council as referred to in 8
section 427 of the Navigation Act 1912 of the 9
Commonwealth, 10
(b) the Uniform Shipping Laws Code adopted by the 11
Australian Transport Council as referred to in section 427 12
of the Navigation Act 1912 of the Commonwealth or any 13
other code, 14
(c) any Australian Standard or any standard of another 15
country, 16
(d) any treaty, convention or international agreement. 17
(3) The regulations may prescribe a person or body who is to be 18
taken to be the statutory marine authority for New South Wales 19
for the purposes of all or specified provisions of the National 20
Standard for Commercial Vessels referred to in 21
subsection (2) (a). 22
[73] Section 139 Exemptions 23
Omit section 139 (3). Insert instead: 24
(3) An exemption granted by the regulations, by a licence or 25
approval as referred to in section 18 or by an order of the Minister 26
or other person may be made subject to any condition specified 27
in the regulation, licence, approval or order. 28
[74] Section 139, note 29
Insert "18," after "11,". 30
[75] Section 144 Review of Act 31
Omit "this Act" from section 144 (2). 32
Insert instead "the Marine Safety Amendment Act 2008". 33
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
[76] Schedule 1 1
Omit the Schedule. Insert instead: 2
Schedule 1 Alcohol and drug use--random 3
breath testing and related matters 4
(Section 28C) 5
Part 1 Interpretation 6
1 Definitions 7
(1) In this Schedule: 8
analyst has the same meaning as in the Road Transport (Safety 9
and Traffic Management) Act 1999. 10
breath analysis has the same meaning as in the Road Transport 11
(Safety and Traffic Management) Act 1999. 12
hospital means: 13
(a) any public hospital within the meaning of the Health 14
Services Act 1997 controlled by an area health service or 15
the Crown, and 16
(b) a statutory health corporation or affiliated health 17
organisation within the meaning of the Health Services Act 18
1997, and 19
(c) any private hospital within the meaning of the Private 20
Hospitals and Day Procedure Centres Act 1988. 21
prescribed laboratory means a laboratory prescribed by 22
regulations under the Road Transport (Safety and Traffic 23
Management) Act 1999 for the purposes of any of the provisions 24
of Part 2 of that Act. 25
prescribed place means a place prescribed by regulations under 26
the Road Transport (Safety and Traffic Management) Act 1999 27
for the purposes of any of the provisions of Part 2 of that Act. 28
prescribed sample taker has the same meaning as in the Road 29
Transport (Safety and Traffic Management) Act 1999. 30
(2) A reference in this Schedule to a police officer authorised by the 31
Commissioner of Police to operate breath analysing instruments 32
includes a reference to a police officer so authorised under the 33
Road Transport (Safety and Traffic Management) Act 1999. 34
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(3) For the purposes of this Schedule, a power to require a person to 1
provide a sample of blood or urine includes a power to require a 2
person to provide samples of both blood and urine. 3
Part 2 Random breath testing and breath analysis 4
2 Power to conduct random breath testing 5
(1) A police officer may require a person to undergo a breath test in 6
accordance with the officer's directions if the officer has 7
reasonable cause to believe that the person is or was operating a 8
vessel. 9
(2) An authorised officer (other than a police officer) may require a 10
person to undergo a breath test in accordance with the directions 11
of the officer if the officer has reasonable cause to believe: 12
(a) the person is or was operating a vessel while there is or was 13
alcohol in the person's breath or blood, or 14
(b) the person was operating a vessel concerned in an accident 15
which has resulted in the death of, or injury to, any person, 16
or 17
(c) the person was operating a vessel concerned in an accident 18
which has resulted in damage to a vessel that affects the 19
seaworthiness of the vessel or the safety of persons on 20
board the vessel, or has resulted in damage to other 21
property apparently in excess of $1,000 (or, if another 22
amount is prescribed by the regulations, the prescribed 23
amount). 24
(3) An authorised officer to whom subclause (2) applies may only 25
require a person who is or was operating a vessel to undergo a 26
breath test if there is reasonable cause as referred to in that 27
subclause. 28
(4) A person must not, when required by a police officer to undergo 29
a breath test under subclause (1) or required by an authorised 30
officer to undergo a breath test under subclause (2), refuse or fail 31
to undergo the breath test in accordance with the directions of the 32
officer. 33
Maximum penalty: 10 penalty units. 34
(5) It is a defence to a prosecution for an offence under subclause (4) 35
if the defendant satisfies the court that the defendant was unable 36
on medical grounds, at the time the defendant was required to do 37
so, to undergo a breath test. 38
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(6) Before requiring a person to undergo a breath test under 1
subclause (1) or (2), and for the purpose of determining whether 2
to conduct such a test, an authorised officer may conduct a 3
preliminary assessment to determine if alcohol is present in the 4
person's breath by requiring the person to talk into a device that 5
indicates the presence of alcohol. 6
3 Arrest following failed breath test 7
(1) An authorised officer may exercise the powers referred to in 8
subclause (2) in respect of a person if: 9
(a) it appears to the officer from a breath test carried out under 10
clause 2 (1) or (2) by the officer that the device by means 11
of which the test was carried out indicates that there may 12
be present in the person's breath or blood a concentration 13
of alcohol of more than zero grammes in 210 litres of 14
breath or 100 millilitres of blood and the officer has 15
reasonable cause to believe the person is under 18 years of 16
age, or 17
(b) it appears to the officer from a breath test carried out under 18
clause 2 (1) or (2) by the officer that the device by means 19
of which the test was carried out indicates that there may 20
be present in the person's breath or blood a concentration 21
of alcohol of not less than 0.02 grammes in 210 litres of 22
breath or 100 millilitres of blood and the officer has 23
reasonable cause to believe the person is under 18 years of 24
age or is operating the vessel for commercial purposes, or 25
(c) it appears to the officer from a breath test carried out under 26
clause 2 (1) or (2) by the officer that the device by means 27
of which the test was carried out indicates that there may 28
be present in the person's breath or blood a concentration 29
of alcohol of not less than 0.05 grammes in 210 litres of 30
breath or 100 millilitres of blood, or 31
(d) the person refused to undergo a breath test required by an 32
authorised officer under clause 2 (1) or (2) or fails to 33
undergo that test in accordance with the directions of the 34
officer. 35
(2) An authorised officer may: 36
(a) arrest a person referred to in subclause (1) without warrant, 37
and 38
(b) take the person, or cause the person to be taken, with such 39
force as may be necessary, to a police station or some other 40
place as the officer considers desirable, and 41
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
(c) detain the person, or cause the person to be detained, at that 1
police station or other place for the purposes of this Part. 2
4 Breath analysis following arrest 3
(1) An authorised officer may require a person who has been arrested 4
under clause 3 to submit to a breath analysis in accordance with 5
the directions of the officer. 6
(2) A breath analysis must be carried out by a police officer 7
authorised to do so by the Commissioner of Police at or near a 8
police station or such other place as that officer considers 9
desirable. 10
(3) As soon as practicable after a person has submitted to a breath 11
analysis, the police officer operating the breath analysing 12
instrument must deliver a written statement to that person signed 13
by that officer specifying the following: 14
(a) the concentration of alcohol determined by the analysis to 15
be present in that person's breath or blood and expressed 16
in grammes of alcohol in 210 litres of breath or 17
100 millilitres of blood, 18
(b) the day on and time of the day at which the breath analysis 19
was completed. 20
(4) A person who is required by an authorised officer under 21
subclause (1) to submit to a breath analysis must not refuse or fail 22
to submit to that analysis in accordance with the directions of the 23
officer. 24
Maximum penalty: 30 penalty units or imprisonment for 25
18 months or both (in the case of a first offence) or 50 penalty 26
units or imprisonment for 2 years or both (in the case of a second 27
or subsequent offence). 28
(5) It is a defence to a prosecution for an offence under this clause if 29
the defendant satisfies the court that the defendant was unable on 30
medical grounds, at the time the defendant was required to do so, 31
to submit to a breath analysis. 32
5 Offence--wilfully altering alcohol concentration following request 33
for breath test or breath analysis 34
A person must not wilfully do anything to alter the concentration 35
of alcohol in the person's breath or blood: 36
(a) between the time of the event referred to in clause 2 (1) or 37
(2) in respect of which the person has been required by an 38
authorised officer to undergo a breath test and the time 39
when the person undergoes that test, or 40
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(b) if the person is required by an authorised officer to submit 1
to a breath analysis--between the time of the event 2
referred to in clause 2 (1) or (2) in respect of which the 3
person has been required by an authorised officer to 4
undergo a breath test and the time when the person submits 5
to the breath analysis. 6
Maximum penalty: 30 penalty units or imprisonment for 7
18 months or both (in the case of a first offence) or 50 penalty 8
units or imprisonment for 2 years or both (in the case of a second 9
or subsequent offence). 10
6 When breath test or breath analysis not permitted 11
An authorised officer cannot require a person to undergo a breath 12
test or to submit to a breath analysis: 13
(a) if that person has been admitted to hospital for medical 14
treatment, unless the medical practitioner in immediate 15
charge of his or her treatment has been notified of the 16
intention to make the requisition and the medical 17
practitioner does not object on the grounds that compliance 18
with it would be prejudicial to the proper care or treatment 19
of that person, or 20
(b) if it appears to the officer that it would, by reason of 21
injuries sustained by that person, be dangerous to that 22
person's medical condition to undergo a breath test or 23
submit to a breath analysis, or 24
(c) at any time after the expiration of 2 hours from the 25
occurrence of the event by reason of which an authorised 26
officer was entitled under clause 2 (1) or (2) to require that 27
person to undergo a breath test, or 28
(d) at that person's home. 29
7 Procedure to be followed for breath analysis 30
(1) A person who is required under clause 4 (1) to submit to a breath 31
analysis may request the authorised officer making the 32
requisition to arrange for a medical practitioner to take, in the 33
presence of an authorised officer, a sample of that person's blood, 34
for analysis in accordance with this clause at that person's own 35
expense. 36
(2) A request by a person under subclause (1), or the taking of a 37
sample of that person's blood, does not absolve that person from 38
the obligation imposed on the person to submit to a breath 39
analysis in accordance with clause 4 (1). 40
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(3) A medical practitioner by whom a sample of a person's blood is 1
taken under an arrangement referred to in subclause (1) must: 2
(a) place the sample into a container, and 3
(b) fasten and seal the container, and 4
(c) mark or label the container for future identification, and 5
(d) give to the person from whom the sample is taken a 6
certificate relating to the sample that contains sufficient 7
information to enable the sample to be identified as a 8
sample of that person's blood, and 9
(e) as soon as reasonably practicable after the sample is taken, 10
hand the sample to the authorised officer who was present 11
at the time the sample was taken. 12
(4) The authorised officer to whom a sample of blood is handed 13
under subclause (3) must, as soon as reasonably practicable after 14
the sample is handed to the officer, arrange for the sample to be 15
submitted to a prescribed laboratory for analysis by an analyst to 16
determine the concentration of alcohol in the blood. 17
(5) The person from whom the sample was taken may, within 18
12 months after the taking of the sample, apply to the prescribed 19
laboratory for a portion of the sample to be sent, for analysis at 20
that person's own expense, to a medical practitioner or laboratory 21
nominated by the person. 22
(6) An analyst at the laboratory to which a sample of blood is 23
submitted for analysis under this clause may carry out an analysis 24
of the sample, or of a portion of the sample, to determine the 25
concentration of alcohol (and, where required, of other drugs) in 26
the blood. 27
(7) An analysis referred to in subclause (6) may be carried out, and 28
any act, matter or thing in connection with the analysis (including 29
the receipt of the sample of blood to be analysed and the breaking 30
of any seal securing the sample) may be done, by a person acting 31
under the supervision of an analyst, and in that event is taken to 32
have been carried out or done by the analyst. 33
Part 3 Blood analysis of accident patients 34
following accidents 35
8 Hospitals to which this Part applies 36
In this Part, a reference to a hospital includes a reference to any 37
premises, institution or establishment prescribed by the 38
regulations under the Road Transport (Safety and Traffic 39
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
Management) Act 1999 as a hospital for the purposes of 1
Division 4 of Part 2 of that Act. 2
9 Blood samples to be taken in hospitals from accident patients 3
(1) In this clause, accident patient means a person at least 15 years 4
of age who attends at or is admitted into a hospital for 5
examination or treatment because the person has been involved 6
in an accident while operating a vessel. 7
(2) Any medical practitioner by whom an accident patient is attended 8
at a hospital is under a duty to take a sample of the patient's blood 9
for analysis as soon as practicable. 10
(3) The medical practitioner is under a duty to take the sample 11
whether or not the accident patient consents to the taking of the 12
sample. 13
(4) If there is no medical practitioner present to attend the accident 14
patient at the hospital, the blood sample is to be taken by a 15
registered nurse who is attending the patient and who is 16
accredited by a hospital as competent to perform the sampling 17
procedures. 18
(5) A medical practitioner or nurse is not required by this clause to 19
take a sample of an accident patient's blood: 20
(a) if a sample of the accident patient's blood has already been 21
taken in accordance with this clause by another medical 22
practitioner or nurse, or 23
(b) if the medical practitioner or nurse has been informed by a 24
police officer (or has reasonable grounds to believe) that 25
the sample is required to be taken for the purposes of Part 5 26
of this Schedule. 27
10 Offence--failure to take blood sample 28
(1) A medical practitioner or nurse must not fail to take a person's 29
blood sample as required under this Part. 30
Maximum penalty: 20 penalty units. 31
(2) It is a defence to a prosecution for an offence under subclause (1) 32
if the medical practitioner or nurse satisfies the court that: 33
(a) he or she believed on reasonable grounds that the taking of 34
blood from the person from whom he or she was required 35
by clause 9 to take a sample of blood would be prejudicial 36
to the proper care and treatment of the person, or 37
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Amendments Schedule 1
(b) he or she did not believe that the person was at least 1
15 years of age and it was reasonable for him or her not to 2
have so believed, or 3
(c) he or she did not believe that the person had attended at or 4
been admitted into the hospital in consequence of an 5
accident involving a vessel that the person was operating, 6
or 7
(d) without limiting paragraph (c)--he or she did not believe 8
that the person was a person from whom he or she was 9
required by clause 9 to take a sample of blood and it was 10
reasonable for him or her not to have so believed, or 11
(e) the requirement that he or she take a sample of blood from 12
the person arose after the expiration of 12 hours after the 13
accident concerned occurred or he or she believed on 14
reasonable grounds that the requirement so arose, or 15
(f) he or she did not know, and could not with reasonable 16
diligence have ascertained, which of 2 or more persons 17
involved in an accident on a vessel was or were a person or 18
persons from whom he or she was required by clause 9 to 19
take a sample or samples of blood, or 20
(g) he or she was, by reason of the behaviour of the person, 21
unable to take a sample of blood from the person at the 22
time the person attended at or was admitted into the 23
hospital or a reasonable time after so attending or being 24
admitted, or 25
(h) there was reasonable cause for him or her not to take a 26
sample of blood from the person in accordance with this 27
Part. 28
11 Offence--hindering or obstructing health professional taking 29
blood sample 30
(1) A person must not hinder or obstruct a medical practitioner or 31
nurse in attempting to take a sample of the blood of any other 32
person in accordance with this Part. 33
Maximum penalty: 20 penalty units. 34
(2) A person must not: 35
(a) by reason of the person's behaviour, prevent a medical 36
practitioner or nurse from taking a sample of the person's 37
blood in accordance with this Part, or 38
(b) between the time of the accident concerned and the taking 39
of a sample of the person's blood in accordance with this 40
Part, wilfully do anything to alter the concentration of 41
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
alcohol in the person's blood (except at the direction or 1
under the supervision of an appropriate health 2
professional). 3
Maximum penalty: 30 penalty units or imprisonment for 4
18 months or both (in the case of a first offence) or 50 penalty 5
units or imprisonment for 2 years or both (in the case of a second 6
or subsequent offence). 7
(3) It is a defence to a prosecution of a person for an offence under 8
subclause (2) of wilfully doing anything to alter the concentration 9
of alcohol in the person's blood if he or she satisfies the court that 10
he or she did the thing after the expiration of 2 hours after the 11
accident concerned occurred. 12
(4) In this clause, appropriate health professional means a medical 13
practitioner or nurse, or a person of a class or description 14
prescribed by the regulations under this Act or the Road 15
Transport (Safety and Traffic Management) Act 1999, for the 16
proper care and treatment of the person. 17
12 Analysis of samples of blood taken under this Part 18
(1) The medical practitioner or nurse by whom a sample of a 19
person's blood is taken in accordance with this Part must: 20
(a) place the sample into a container, and 21
(b) fasten and seal the container, and 22
(c) mark or label the container for future identification, and 23
(d) give to the person from whom the sample is taken a 24
certificate relating to the sample that contains sufficient 25
information to enable the sample to be identified as a 26
sample of that person's blood. 27
Maximum penalty: 20 penalty units. 28
(2) The medical practitioner or nurse must, as soon as reasonably 29
practicable after the sample is taken, arrange for the sample to be 30
submitted to a prescribed laboratory for analysis by an analyst to 31
determine the concentration of alcohol in the blood. 32
Maximum penalty: 20 penalty units. 33
(3) The person from whom the sample was taken may, within 34
12 months after the taking of the sample, apply to the prescribed 35
laboratory for a portion of the sample to be sent, for analysis at 36
that person's own expense, to a medical practitioner or laboratory 37
nominated by the person. 38
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Amendments Schedule 1
(4) A medical practitioner who, in another State or Territory, takes a 1
sample of blood: 2
(a) from a person attended by the medical practitioner in 3
consequence of an accident in New South Wales, and 4
(b) in accordance with provisions of a law of that State or 5
Territory that substantially correspond to the provisions of 6
clause 9, 7
may arrange for a portion of the sample to be submitted for an 8
analysis by an analyst to determine the concentration of alcohol 9
in the blood. 10
(5) An authorised officer may arrange for a sample of a person's 11
blood taken in accordance with this Part to be submitted to a 12
prescribed laboratory for analysis to determine the concentration 13
of alcohol, or of alcohol and other drugs, in the blood. 14
(6) An authorised officer may not make arrangements under 15
subclause (5) for analysis of a blood sample to determine the 16
concentration in the blood of a drug other than alcohol unless: 17
(a) the following circumstances apply: 18
(i) the accident that caused the person to attend at or be 19
admitted to hospital was a fatal accident, 20
(ii) the person from whom the sample was taken was 21
operating a vessel involved in the accident, or 22
(b) the following circumstances apply: 23
(i) the authorised officer has reasonable grounds to 24
believe that, at the time of the accident concerned, 25
the person from whom the sample was taken was 26
under the influence of a drug other than alcohol, 27
(ii) no authorised officer attended the scene of the 28
accident that led to the taking of the sample or, 29
although an authorised officer or authorised officers 30
attended the scene of the accident, there was no 31
reasonable opportunity to require the person from 32
whom the sample was taken to submit, in 33
accordance with Part 5, to an assessment of his or 34
her sobriety. 35
(7) An analyst to whom a sample of blood, or a portion of a sample 36
of blood (under subclause (4)), is submitted for analysis under 37
this clause may carry out an analysis of the sample, or of a portion 38
of the sample, to determine the concentration of alcohol (and, 39
where required, of other drugs) in the blood. 40
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Schedule 1 Amendments
(8) An analysis referred to in subclause (7) may be carried out, and 1
any act, matter or thing in connection with the analysis (including 2
the receipt of the sample of blood, or the portion of the sample of 3
blood, to be analysed and the breaking of any seal securing the 4
sample or portion) may be done, by a person acting under the 5
supervision of an analyst, and in that event is taken to have been 6
carried out or done by the analyst. 7
13 Supervisee may perform functions of medical practitioner under 8
this Part 9
(1) Any duty of a medical practitioner under this Part and any 10
relevant provisions of the regulations may be performed by a 11
person acting under the supervision of the medical practitioner. 12
(2) A duty performed by any such person is taken to have been 13
performed by the medical practitioner. 14
Part 4 Blood and urine analysis of persons who 15
are not accident patients following fatal 16
accidents 17
14 Power to arrest persons involved in fatal accidents for blood and 18
urine tests 19
(1) This clause applies to a person who: 20
(a) is at least 15 years old, and 21
(b) at the time of an accident was operating a vessel involved 22
in the accident, and 23
(c) is not an accident patient within the meaning of clause 9. 24
(2) An authorised officer may exercise the powers referred to in 25
subclause (3) in relation to a person to whom this clause applies 26
if the officer believes that: 27
(a) the accident is a fatal accident, or 28
(b) it is more likely than not that a person will die within 29
30 days as a consequence of the accident. 30
(3) An authorised officer may: 31
(a) arrest the person without warrant, and 32
(b) take the person (or cause the person to be taken) with such 33
force as may be necessary to a hospital or prescribed place, 34
and 35
(c) detain the person, or cause the person to be detained, at the 36
hospital or other prescribed place to enable the person to 37
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Marine Safety Amendment Bill 2008
Amendments Schedule 1
provide blood and urine samples in accordance with this 1
Part. 2
(4) In this Part, accident means an accident involving a vessel. 3
15 Procedure for taking samples following arrest 4
(1) Except as provided by clause 16, an authorised officer may 5
require a person who has been arrested under clause 14 to provide 6
samples of the person's blood and urine (whether or not the 7
person consents to the samples being taken) in accordance with 8
the directions of a medical practitioner, registered nurse or 9
prescribed sample taker. 10
(2) The authorised officer must inform any such medical 11
practitioner, registered nurse or prescribed sample taker that the 12
samples are required to be taken for the purposes of this Part. 13
(3) The medical practitioner, registered nurse or prescribed sample 14
taker by whom or under whose directions a sample of blood is 15
taken in accordance with this Part must: 16
(a) place the sample into a container, and 17
(b) fasten and seal the container, and 18
(c) mark or label the container for future identification, and 19
(d) give to the person from whom the sample is taken a 20
certificate relating to the sample that contains sufficient 21
information to enable the sample to be identified as a 22
sample of that person's blood. 23
(4) The medical practitioner, registered nurse or prescribed sample 24
taker must, as soon as reasonably practicable after the sample of 25
blood is taken, arrange for the sample to be submitted to a 26
prescribed laboratory for analysis by an analyst to determine 27
whether the blood contains a drug. 28
(5) The person from whom the sample of blood was taken may, 29
within 12 months after the taking of the sample, apply to the 30
prescribed laboratory for a portion of the sample to be sent, for 31
analysis at that person's own expense, to a medical practitioner 32
or laboratory nominated by the person. 33
(6) The medical practitioner, registered nurse or prescribed sample 34
taker under whose directions a sample of urine is provided in 35
accordance with this Part must: 36
(a) divide the sample into 2 approximately equal portions, and 37
(b) place each portion into a container, and 38
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(c) fasten and seal each container, and 1
(d) mark or label each container for future identification. 2
(7) Of the 2 sealed containers: 3
(a) one must be handed by the medical practitioner, registered 4
nurse or prescribed sample taker to the person from whom 5
it was taken or to some other person on behalf of that 6
person, and 7
(b) the other must be handed by the practitioner, nurse or 8
prescribed sample taker to the authorised officer present 9
when the sample was taken and forwarded to a prescribed 10
laboratory for analysis by an analyst to determine whether 11
the urine contains a drug. 12
(8) An analyst at a prescribed laboratory to whom any blood or urine 13
is submitted for analysis under this clause may carry out an 14
analysis of the blood or urine to determine whether it contains a 15
drug, but only if an authorised officer has notified the analyst in 16
writing that a person involved in the accident that led to the 17
sample of blood or urine being submitted for analysis: 18
(a) has died within 30 days of the accident, or 19
(b) has died during the period beginning 30 days after the 20
accident and ending 12 months after the accident and a 21
medical practitioner has given advice that the person died 22
as a result of the accident. 23
(9) Any duty of a medical practitioner, registered nurse or prescribed 24
sample taker under this Part and any relevant provisions of the 25
regulations may be performed by a person acting under the 26
supervision of the practitioner, nurse or prescribed sample taker. 27
A duty performed by any such person is taken to have been 28
performed by the medical practitioner, registered nurse or 29
prescribed sample taker. 30
(10) An analysis under this clause may be carried out, and anything in 31
connection with the analysis (including the receipt of the blood or 32
urine to be analysed and the breaking of any seal) may be done, 33
by a person acting under the supervision of an analyst and, in that 34
event, is taken to have been carried out or done by the analyst. 35
(11) A blood or urine sample that has been provided under this clause 36
must be destroyed by or at the direction of the analyst who has 37
custody of the sample without being analysed if, at the expiry of 38
13 months after the accident concerned, no authorised officer has 39
made a notification relating to a death under subclause (8). 40
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16 When taking of samples not permitted 1
An authorised officer cannot require a person to provide a sample 2
under this Part: 3
(a) if a medical practitioner, registered nurse or prescribed 4
sample taker has objected on the grounds that compliance 5
would be dangerous to the person's health, or 6
(b) if it appears to that officer that it would, because of any 7
injuries to the person, be dangerous to the person's medical 8
condition to provide the sample, or 9
(c) at any time after the expiration of 4 hours from the 10
occurrence of the accident concerned. 11
17 Offences related to testing for drugs 12
(1) A person must not: 13
(a) on being required under this Part by an authorised officer 14
to provide samples of blood and urine: 15
(i) refuse or fail to submit to the taking of the sample of 16
blood, or 17
(ii) refuse or fail to provide the sample of urine, 18
in accordance with the directions of a medical practitioner, 19
registered nurse or prescribed sample taker, or 20
(b) between the time of the fatal accident concerned and the 21
time when the person provides a sample that the person is 22
required to provide under this Part, wilfully do anything to 23
introduce, or alter the amount of, a drug in the person's 24
blood or urine (except at the direction or under the 25
supervision of an appropriate health professional). 26
Maximum penalty: 30 penalty units or imprisonment for 27
18 months or both (in the case of a first offence) or 50 penalty 28
units or imprisonment for 2 years or both (in the case of a second 29
or subsequent offence). 30
(2) It is a defence to a prosecution for an offence under 31
subclause (1) (a) if the defendant satisfies the court that the 32
defendant was unable, on medical grounds, to provide a sample 33
when the defendant was required to do so. 34
(3) It is a defence to a prosecution of a person for an offence under 35
subclause (1) (b) of wilfully doing anything to introduce, or alter 36
the amount of, a drug in the person's blood or urine if the person 37
satisfies the court that the thing was done more than 4 hours after 38
the time of the fatal accident concerned. 39
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Marine Safety Amendment Bill 2008
Schedule 1 Amendments
(4) If a medical practitioner, registered nurse or prescribed sample 1
taker is informed by an authorised officer in accordance with this 2
Part that a sample is required to be taken for the purposes of this 3
Part, the medical practitioner, registered nurse or prescribed 4
sample taker must not: 5
(a) fail to take the sample, or 6
(b) fail to comply with any requirement made by clause 15 (3), 7
(4), (6) or (7) in relation to the sample. 8
Maximum penalty: 20 penalty units. 9
(5) It is a defence to a prosecution for an offence under subclause (4) 10
if the medical practitioner, registered nurse or prescribed sample 11
taker satisfies the court that: 12
(a) the practitioner, nurse or prescribed sample taker believed 13
on reasonable grounds that the taking of the sample from 14
the person would be prejudicial to the proper care and 15
treatment of the person, or 16
(b) the practitioner, nurse or prescribed sample taker believed 17
on reasonable grounds that the person was less than 18
15 years of age, or 19
(c) the practitioner, nurse or prescribed sample taker was, 20
because of the behaviour of the person, unable to take the 21
sample, or 22
(d) there was other reasonable cause for the practitioner, nurse 23
or prescribed sample taker not to take the sample. 24
(6) A person must not hinder or obstruct a medical practitioner, 25
registered nurse or prescribed sample taker in attempting to take 26
a sample of the blood or urine of any other person in accordance 27
with this Part. 28
Maximum penalty: 20 penalty units. 29
Part 5 Sobriety assessments and related drug 30
analysis 31
18 Authorised officer may require sobriety assessment 32
(1) An authorised officer may require a person to submit to an 33
assessment of his or her sobriety in accordance with the 34
directions of the officer if: 35
(a) the person has undergone a breath test in accordance with 36
Part 2 of this Schedule, and 37
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Amendments Schedule 1
(b) the result of the test does not permit the person to be 1
required to submit to a breath analysis. 2
(2) A person cannot be required to submit to a sobriety assessment 3
unless: 4
(a) an authorised officer has a reasonable belief that, by the 5
way in which the person is or was operating a vessel the 6
person may be under the influence of a drug, and 7
(b) the assessment is carried out by an authorised officer at or 8
near the place where the person underwent the breath test. 9
19 Arrest following failure to submit to (or pass) sobriety assessment 10
If the person refuses to submit to a sobriety assessment under this 11
Part or, after the assessment has been made, an authorised officer 12
has a reasonable belief that the person is under the influence of a 13
drug, the officer may: 14
(a) arrest that person without warrant, and 15
(b) take the person (or cause the person to be taken) with such 16
force as may be necessary to a hospital or a prescribed 17
place and there detain the person (or cause the person to be 18
detained) for the purposes of this Part. 19
20 Procedure for taking samples following arrest 20
(1) Except as provided by clause 21, an authorised officer may 21
require a person who has been arrested under clause 19 to provide 22
samples of the person's blood and urine (whether or not the 23
person consents to them being taken) in accordance with the 24
directions of a medical practitioner, registered nurse or 25
prescribed sample taker. 26
(2) The authorised officer must inform any such medical 27
practitioner, registered nurse or prescribed sample taker that the 28
samples are required to be taken for the purposes of this Part. 29
(3) The medical practitioner, registered nurse or prescribed sample 30
taker by whom or under whose directions a sample of blood is 31
taken in accordance with this Part must: 32
(a) place the sample into a container, and 33
(b) fasten and seal the container, and 34
(c) mark or label the container for future identification, and 35
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Schedule 1 Amendments
(d) give to the person from whom the sample is taken a 1
certificate relating to the sample that contains sufficient 2
information to enable the sample to be identified as a 3
sample of that person's blood. 4
Maximum penalty: 20 penalty units. 5
(4) The medical practitioner, registered nurse or prescribed sample 6
taker must, as soon as reasonably practicable after the sample of 7
blood is taken, arrange for the sample to be submitted to a 8
prescribed laboratory for analysis by an analyst to determine 9
whether the blood contains a drug. 10
Maximum penalty: 20 penalty units. 11
(5) The person from whom the sample of blood was taken may, 12
within 12 months after the taking of the sample, apply to the 13
prescribed laboratory for a portion of the sample to be sent, for 14
analysis at that person's own expense, to a medical practitioner 15
or laboratory nominated by the person. 16
(6) The medical practitioner, registered nurse or prescribed sample 17
taker by whom or under whose directions a sample of urine is 18
taken in accordance with this Part must: 19
(a) divide the sample into 2 approximately equal portions, and 20
(b) place each portion into a container, and 21
(c) fasten and seal each container, and 22
(d) mark or label each container for future identification. 23
(7) Of the 2 sealed containers: 24
(a) one must be handed by the medical practitioner, registered 25
nurse or prescribed sample taker to the person from whom 26
it was taken or to some other person on behalf of that 27
person, and 28
(b) the other must be handed by the practitioner, nurse or 29
prescribed sample taker to the authorised officer present 30
when the sample was taken and forwarded to a prescribed 31
laboratory for analysis by an analyst to determine whether 32
the urine contains a drug. 33
(8) An analyst at a prescribed laboratory to whom any blood or urine 34
is submitted for analysis under this clause may carry out an 35
analysis of the blood or urine to determine whether it contains a 36
drug. 37
(9) Any duty of a medical practitioner, registered nurse or prescribed 38
sample taker under this Part and any relevant provisions of the 39
regulations may be performed by a person acting under the 40
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Amendments Schedule 1
supervision of the medical practitioner, registered nurse or 1
prescribed sample taker. A duty performed by any such person is 2
taken to have been performed by the medical practitioner, 3
registered nurse or prescribed sample taker. 4
(10) An analysis under this clause may be carried out, and anything in 5
connection with the analysis (including the receipt of the blood or 6
urine to be analysed and the breaking of any seal) may be done, 7
by a person acting under the supervision of an analyst and, in that 8
event, is taken to have been carried out or done by the analyst. 9
21 When sobriety assessment and taking of samples not permitted 10
An authorised officer cannot require a person to submit to a 11
sobriety assessment or to provide a sample under this Part: 12
(a) if the person has been admitted to hospital for medical 13
treatment, unless the medical practitioner in immediate 14
charge of the person's treatment has been notified of the 15
intention to make the requirement and the medical 16
practitioner does not object on the grounds that compliance 17
would be prejudicial to the proper care and treatment of the 18
person, or 19
(b) if it appears to that officer that it would, because of the 20
person's injuries, be dangerous to the person's medical 21
condition to submit to the assessment or provide the 22
sample, or 23
(c) at any time after the expiration of 4 hours from the 24
occurrence of the event referred to in clause 18 (2) (a) 25
because of which the officer was entitled to require the 26
person to submit to the assessment or provide the sample, 27
or 28
(d) at the person's home. 29
22 Offences related to sobriety assessments and testing for drugs 30
(1) A person must not, when required by an authorised officer to 31
submit to an assessment under clause 18, refuse or fail to submit 32
to the assessment in accordance with the directions of the officer. 33
Maximum penalty: 10 penalty units. 34
(2) A person must not: 35
(a) on being required under this Part by an authorised officer 36
to provide samples of blood or urine: 37
(i) refuse or fail to submit to the taking of the sample of 38
blood, or 39
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Schedule 1 Amendments
(ii) refuse or fail to provide the sample of urine, 1
in accordance with the directions of a medical practitioner, 2
registered nurse or prescribed sample taker, or 3
(b) wilfully do anything to introduce, or alter the amount of, a 4
drug in the person's blood or urine between the time of the 5
event referred to in clause 18 (2) (a) in respect of which the 6
person has been required by an authorised officer to submit 7
to an assessment and the time when the person undergoes 8
that assessment, or 9
(c) wilfully do anything to introduce, or alter the amount of, a 10
drug in the person's blood or urine between the time of the 11
event referred to in clause 18 (2) (a) in respect of which the 12
person has been required by an authorised officer to submit 13
to an assessment and the time when the person provides a 14
sample that the person is required to provide under this 15
Part. 16
Maximum penalty: 30 penalty units or imprisonment for 17
18 months or both (in the case of a first offence) or 50 penalty 18
units or imprisonment for 2 years or both (in the case of a second 19
or subsequent offence). 20
(3) It is a defence to a prosecution for an offence under subclause (1) 21
or (2) (a) if the defendant satisfies the court that the defendant 22
was unable on medical grounds, when the defendant was required 23
to do so, to submit to an assessment or to provide a sample. 24
(4) It is a defence to a prosecution of a person for an offence under 25
subclause (2) (b) of wilfully doing anything to introduce, or alter 26
the amount of, a drug in the person's blood or urine if the person 27
satisfies the court that the thing was done more than 4 hours after 28
the time of the event referred to in clause 18 (2) (a). 29
(5) If a medical practitioner, registered nurse or prescribed sample 30
taker is informed by an authorised officer in accordance with this 31
Part that a sample is required to be taken for the purposes of this 32
Part, the medical practitioner, registered nurse or prescribed 33
sample taker must not: 34
(a) fail to take the sample, or 35
(b) fail to comply with any requirement made by clause 20 (3) 36
or (4) in relation to the sample. 37
Maximum penalty: 20 penalty units. 38
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(6) It is a defence to a prosecution for an offence under subclause (5) 1
if the medical practitioner, registered nurse or prescribed sample 2
taker satisfies the court that: 3
(a) the practitioner, nurse or prescribed sample taker believed 4
on reasonable grounds that the taking of the sample from 5
the person would be prejudicial to the proper care and 6
treatment of the person, or 7
(b) the practitioner, nurse or prescribed sample taker did not 8
believe that the person was of or above the age of 15 years 9
and it was reasonable for the practitioner, nurse or 10
prescribed sample taker not to have so believed, or 11
(c) the practitioner, nurse or prescribed sample taker was, 12
because of the behaviour of the person, unable to take the 13
sample, or 14
(d) there was other reasonable cause for the practitioner, nurse 15
or prescribed sample taker not to take the sample. 16
(7) A person must not hinder or obstruct a medical practitioner, 17
registered nurse or prescribed sample taker in attempting to take 18
a sample of the blood or urine of any other person in accordance 19
with this Part. 20
Maximum penalty: 20 penalty units. 21
Part 6 Powers of authorised officers 22
23 Powers of authorised officers 23
(1) An authorised officer may, for the purposes of Part 3 of this Act 24
and this Schedule, exercise the following powers: 25
(a) direct or signal a person who is operating a vessel to 26
manoeuvre the vessel in a specified manner or to a 27
specified place, 28
(b) direct or signal a person to stop the vessel and secure it in 29
a specified manner, 30
(c) board a vessel for the purpose of investigating an offence 31
the authorised officer reasonably suspects to have been 32
committed while the vessel was underway, 33
(d) require any person whom the authorised officer reasonably 34
suspects of having committed an offence against this 35
Schedule or the regulations or who, in the opinion of the 36
authorised officer, is in a position to give evidence relating 37
to the commission of an offence, to state his or her full 38
name and residential address. 39
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Schedule 1 Amendments
(2) A person who: 1
(a) fails or refuses to comply with a requirement under this 2
clause, or 3
(b) hinders an authorised officer acting in the exercise of the 4
officer's powers under this clause, or 5
(c) when required to state his or her name and residential 6
address, states a false name or address, 7
is guilty of an offence. 8
Maximum penalty: 10 penalty units. 9
(3) A person is not guilty of an offence of failing or refusing to 10
comply with a requirement under subclause (1) (c) or (d) unless 11
it is established that the authorised officer: 12
(a) warned the person that a failure or refusal to comply with 13
the requirement is an offence, and 14
(b) identified himself or herself as an authorised officer. 15
24 Identification of offender 16
(1) If a person is reasonably suspected by an authorised officer to 17
have committed an offence against Part 3 of this Act, or this 18
Schedule, the owner of the vessel concerned or person in charge 19
of the vessel at the time of the alleged offence may be required to 20
give information as to the full name and residential address of the 21
person suspected of committing the offence and any other person 22
may be required to give any information that may lead to the 23
identification of the person. 24
(2) The owner or person in charge may be required to give the 25
information in the form of a written statement signed by the 26
owner or person in charge. 27
(3) A person who fails to comply with a requirement under this 28
clause is guilty of an offence. 29
Maximum penalty: 10 penalty units. 30
(4) A person is not guilty of an offence under this clause if it is 31
established that the person did not know and could not with 32
reasonable diligence have established the name and address of 33
the person. 34
(5) A written statement purporting to be furnished under this clause 35
and to contain particulars of the name and residential address of 36
a person at the time of commission of an alleged offence against 37
Part 3 of this Act or this Schedule is evidence in proceedings 38
against the person that he or she was the operator of the vessel at 39
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Amendments Schedule 1
the time of commission of the alleged offence without proof of 1
signature if the person does not appear before the court. 2
25 Detention of vessel in certain cases 3
(1) An authorised officer may take charge of and remove any vessel 4
in respect of which an offence under Division 2 or 3 of Part 3 has 5
been committed to any convenient place for safe keeping. 6
(2) The court adjudicating may, if it is of the opinion that there was 7
reasonable cause for any such taking charge, removal and safe 8
keeping, order the costs, charges and expenses of it to be paid by 9
the offender. 10
Part 7 Evidentiary and other procedural matters 11
26 Evidence of alcohol concentration revealed by breath or blood 12
analysis in proceedings for offence under section 24 13
(1) In proceedings for an offence under section 24, evidence may be 14
given of the concentration of alcohol present in the breath or 15
blood of the person charged as determined by: 16
(a) a breath analysing instrument operated by a police officer 17
authorised to do so by the Commissioner of Police, or 18
(b) an analysis of the person's blood under this Schedule. 19
(2) In proceedings for an offence under section 24, the concentration 20
of alcohol so determined is taken to be the concentration of 21
alcohol in the person's breath or blood at the time of the 22
occurrence of the relevant event referred to in clause 2 (1) or (2) 23
if the breath analysis was made, or blood sample taken, within 24
2 hours after the event unless the defendant proves that the 25
concentration of alcohol in the defendant's breath or blood at the 26
time concerned was: 27
(a) in the case of an offence under section 24 (1)--zero 28
grammes of alcohol in 210 litres of breath or 100 millilitres 29
of blood, or 30
(b) in the case of an offence under section 24 (2)--less than 31
0.02 grammes of alcohol in 210 litres of breath or 32
100 millilitres of blood, or 33
(c) in the case of an offence under section 24 (3)--less than 34
0.05 grammes of alcohol in 210 litres of breath or 35
100 millilitres of blood, or 36
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Schedule 1 Amendments
(d) in the case of an offence under section 24 (4)--less than 1
0.08 grammes of alcohol in 210 litres of breath or 2
100 millilitres of blood, or 3
(e) in the case of an offence under section 24 (5)--less than 4
0.15 grammes of alcohol in 210 litres of breath or 5
100 millilitres of blood. 6
(3) Nothing in subclause (2) affects the operation of section 25. 7
27 Certificate evidence about breath or blood analysis in proceedings 8
for offences under section 24 9
(1) In proceedings for an offence under section 24 a certificate 10
purporting to be signed by a police officer certifying that: 11
(a) the officer is authorised by the Commissioner of Police to 12
operate breath analysing instruments, and 13
(b) a person named in the certificate submitted to a breath 14
analysis, and 15
(c) the apparatus used by the officer to make the breath 16
analysis was a breath analysing instrument within the 17
meaning of this Act, and 18
(d) the analysis was made on the day and completed at the 19
time stated in the certificate, and 20
(e) a concentration of alcohol determined by that breath 21
analysing instrument and expressed in grammes of alcohol 22
in 210 litres of breath or 100 millilitres of blood was 23
present in the breath or blood of that person on the day and 24
at the time stated in the certificate, and 25
(f) a statement in writing required by clause 4 (3) was 26
delivered in accordance with that subclause, 27
is admissible and is prima facie evidence of the particulars 28
certified in and by the certificate. 29
(2) In proceedings for an offence under section 24 or Part 2 of this 30
Schedule a certificate purporting to be signed by the 31
Commissioner of Police that the police officer named in the 32
certificate is authorised by the Commissioner of Police to operate 33
breath analysing instruments is admissible and is prima facie 34
evidence of the particulars certified in and by the certificate. 35
(3) In proceedings for an offence under section 24 or Part 2 of this 36
Schedule, evidence of the condition of a breath analysing 37
instrument, or of the manner in which it was operated, is not 38
required unless evidence sufficient to raise doubt that the 39
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Amendments Schedule 1
instrument was in proper condition and properly operated has 1
been adduced. 2
(4) In proceedings for an offence under section 24, a certificate 3
purporting to be signed by a medical practitioner or nurse 4
certifying any one or more of the following matters is admissible 5
and is prima facie evidence of the particulars certified in and by 6
the certificate: 7
(a) that he or she was a medical practitioner or nurse who 8
attended a specified person who attended at or was 9
admitted into a hospital as referred to in clause 9, 10
(b) that he or she took a sample of the person's blood in 11
accordance with Part 3 of this Schedule, and any relevant 12
provisions of the regulations, on the day and at the time 13
stated in the certificate, 14
(c) that he or she dealt with the sample in accordance with 15
clause 12 (1) and any relevant provisions of the 16
regulations, 17
(d) that he or she used equipment of a specified description in 18
so taking and dealing with the sample, 19
(e) that the container was sealed, and marked or labelled, in a 20
specified manner. 21
(5) In proceedings for an offence under section 24, a certificate 22
purporting to be signed by a police officer certifying any one or 23
more of the following matters is admissible and is prima facie 24
evidence of the particulars certified in and by the certificate: 25
(a) that the officer received a sample of a specified person's 26
blood taken in accordance with Part 3 of this Schedule, 27
(b) that the officer arranged for the sample to be submitted for 28
analysis by an analyst to determine the concentration of 29
alcohol in the blood, 30
(c) that the container was sealed, and marked or labelled, in a 31
specified manner. 32
(6) In proceedings for an offence under section 24, a certificate 33
purporting to be signed by an analyst certifying any one or more 34
of the following matters: 35
(a) that the analyst received, on a specified day, a sample of a 36
specified person's blood in a container submitted for 37
analysis under this Schedule, 38
(b) that the container, as received by the analyst, was sealed, 39
and marked or labelled, in a specified manner, 40
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Schedule 1 Amendments
(c) that on receipt by the analyst of the container, the seal was 1
unbroken, 2
(d) that the analyst carried out an analysis of the sample to 3
determine the concentration of alcohol in the sample, 4
(e) that the concentration of alcohol determined pursuant to 5
the analysis and expressed in grammes of alcohol in 6
100 millilitres of blood was present in that sample, 7
(f) that the analyst was, at the time of the analysis, an analyst 8
within the meaning of this Schedule, 9
is admissible and is prima facie evidence: 10
(g) of the particulars certified in and by the certificate, and 11
(h) that the sample was a sample of the blood of that specified 12
person, and 13
(i) that the sample had not been tampered with before it was 14
received by the analyst. 15
(7) In proceedings for an offence under section 24, a certificate 16
purporting to be signed by a person who, in another State or 17
Territory: 18
(a) took a blood sample, or 19
(b) analysed a blood sample, 20
in accordance with provisions of a law of that State or Territory 21
that substantially correspond to the provisions of Part 3 of this 22
Schedule is admissible and is prima facie evidence of the 23
particulars certified in and by the certificate, and an analysis to 24
which any such certificate relates is taken to be an analysis under 25
that Part. 26
28 Evidence of drugs revealed by blood or urine analysis in 27
proceedings for offence under section 28 28
In proceedings for an offence under section 28 (1): 29
(a) evidence may be given of: 30
(i) the presence of a drug, or 31
(ii) the presence of a particular concentration of a drug, 32
in the blood or urine of the person charged, as determined 33
pursuant to an analysis under Part 3, 4 or 5 of this Schedule 34
of a sample of the person's blood or urine, and 35
(b) the drug the presence of which is so determined or the 36
particular concentration of the drug the presence of which 37
is so determined, as the case may be, is to be taken to have 38
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Amendments Schedule 1
been present in the blood or urine of that person when the 1
event referred to in section 28 (1) occurred, 2
if the sample was taken within 4 hours after the event, unless the 3
defendant proves the absence of the drug, or the presence of the 4
drug in a different concentration, when the event occurred. 5
29 Certificate evidence about blood or urine analysis in proceedings 6
for offences under section 28 7
(1) In proceedings for an offence under section 28 (1), a certificate 8
purporting to be signed by a medical practitioner, nurse or 9
prescribed sample taker certifying any one or more of the 10
following matters is admissible and is prima facie evidence of the 11
particulars certified in and by the certificate: 12
(a) that the medical practitioner, nurse or prescribed sample 13
taker was a medical practitioner, nurse or prescribed 14
sample taker who attended a specified person who 15
attended at or was admitted into a hospital or a prescribed 16
place as referred to in Part 3, 4 or 5 of this Schedule, 17
(b) that the medical practitioner, nurse or prescribed sample 18
taker took a sample of the person's blood or urine in 19
accordance with Part 3, 4 or 5 of this Schedule and any 20
relevant provisions of the regulations, on the day and at the 21
time stated in the certificate, 22
(c) that the medical practitioner, nurse or prescribed sample 23
taker dealt with the sample in accordance with Part 3, 4 or 24
5 of this Schedule and any relevant provisions of the 25
regulations, 26
(d) that the container was sealed, and marked or labelled, in a 27
specified manner. 28
(2) In proceedings for an offence under section 28 (1), a certificate 29
purporting to be signed by a police officer certifying any one or 30
more of the following matters is admissible and is prima facie 31
evidence of the particulars certified in and by the certificate: 32
(a) that the officer received a sample of a specified person's 33
blood or urine taken in accordance with Part 3, 4 or 5 of 34
this Schedule, 35
(b) that the officer arranged for the sample to be submitted for 36
analysis by an analyst to determine whether any drug was 37
present in the sample, 38
(c) that the container was sealed, and marked or labelled, in a 39
specified manner. 40
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(3) In proceedings for an offence under section 28 (1), a certificate 1
purporting to be signed by an analyst certifying any one or more 2
of the following matters: 3
(a) that the analyst received, on a specified day, a sample of a 4
specified person's blood or urine in a container submitted 5
for analysis under Part 3, 4 or 5 of this Schedule, 6
(b) that the container, as received by the analyst, was sealed, 7
and marked or labelled, in a specified manner, 8
(c) that on receipt by the analyst of the container, the seal was 9
unbroken, 10
(d) that the analyst carried out an analysis of the sample to 11
determine whether any drug was present in the sample, 12
(e) that a specified drug ascertained pursuant to the analysis 13
was present in that sample and, if so certified, was present 14
in that sample in a specified concentration, 15
(f) that the analyst was, at the time of the analysis, an analyst 16
within the meaning of this Schedule, 17
is admissible and is prima facie evidence: 18
(g) of the particulars certified in and by the certificate, and 19
(h) that the sample was a sample of the blood or urine of that 20
specified person, and 21
(i) that the sample had not been tampered with before it was 22
received by the analyst. 23
(4) Subclauses (1)-(3): 24
(a) do not apply to proceedings brought on a charge that, by 25
the operation of clause 32 (4), cannot be laid, and 26
(b) do not enable evidence to be given of or in relation to: 27
(i) the presence of a drug other than alcohol, or 28
(ii) the presence of a particular concentration of a drug 29
other than alcohol, 30
in the blood of a person charged with an offence under 31
section 28 (1), as determined by an analysis under Part 3 of 32
this Schedule, unless the court is satisfied that the analysis 33
was not arranged in contravention of clause 12 (6). 34
30 Certificate evidence may specify minimum concentrations 35
If, in any proceedings in which evidence is permitted to be given 36
of the results of an analysis, undertaken for the purposes of this 37
Act, of a sample of a person's blood or urine, evidence is given 38
by a certificate under this Act to the effect that alcohol or another 39
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Amendments Schedule 1
specified drug was found by the analysis to be present in the 1
sample in a concentration not less than a specified concentration: 2
(a) the certificate is to be treated as though it stated that the 3
concentration of alcohol or of the other drug concerned 4
was determined by the analysis to be present in the 5
specified minimum concentration, and 6
(b) the evidence given by the certificate is not open to 7
challenge on the basis that the analysis, merely because it 8
purports to determine a concentration in terms of a 9
minimum, does not meet the requirements of this Act. 10
31 Evidence of breath test, breath analysis or blood or urine analysis 11
and related facts not admissible in insurance cases to prove 12
intoxication or drug use 13
(1) For the purposes of any contract of insurance, any of the 14
following facts are not admissible as evidence of the fact that a 15
person was at any time under the influence of or in any way 16
affected by intoxicating liquor or incapable of operating or of 17
exercising effective control over a vessel: 18
(a) the fact that a person has undergone a breath test or 19
submitted to a breath analysis under Part 2 of this 20
Schedule, 21
(b) the result of a breath test or breath analysis, 22
(c) the fact that a person has been convicted of an offence 23
under section 24 or clause 2 (4), 4 (4) or 5. 24
(2) For the purposes of any contract of insurance, the results of any 25
analysis of blood or urine under Part 3, 4 or 5 of this Schedule are 26
not admissible as evidence of the fact that a person was at any 27
time under the influence of or in any way affected by intoxicating 28
liquor or other drug or incapable of operating or of exercising 29
effective control over a vessel. 30
(3) Nothing in subclause (1) or (2) precludes the admission of any 31
other evidence to show a fact referred to in the subclause. 32
(4) The provisions of this clause have effect despite anything 33
contained in any contract of insurance. 34
(5) Any covenant, term, condition or provision in any contract of 35
insurance is void: 36
(a) to the extent that the operation of this clause is excluded, 37
limited, modified or restricted, or 38
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Schedule 1 Amendments
(b) to the extent that it purports to exclude or limit the liability 1
of the insurer in the event of any person being convicted of 2
an offence under section 24 or Part 2 of this Schedule. 3
(6) However, nothing in subclause (5) precludes the inclusion in a 4
contract of insurance of any other covenant, term, condition or 5
provision under which the liability of the insurer is excluded or 6
limited. 7
32 Double jeopardy in relation to alcohol and other drug offences 8
(1) If a person has been convicted of an offence under clause 4 (4), 9
5, 17 (1) or (6) or 22 (2), the person is not liable to be convicted 10
of an offence under section 28 (1) if the offence for which the 11
person has been convicted and the other offence arose directly or 12
indirectly out of the same circumstances. 13
(2) If a person has been convicted of an offence under section 28 (1), 14
the person is not liable to be convicted of an offence under 15
clause 4 (4), 5, 17 (1) or (6) or 22 (2) if the offence for which the 16
person has been convicted and the other offence arose directly or 17
indirectly out of the same circumstances. 18
(3) If, by reason of the occurrence of an event referred to in 19
clause 2 (1) or (2), a person is required by an authorised officer 20
to undergo a breath test and as a consequence of that test to 21
submit to a breath analysis and the person submits to the breath 22
analysis in accordance with the directions of an authorised 23
officer, the person cannot be charged with an offence under 24
section 28 (1) of operating a vessel, at the time of that event, 25
while the person was under the influence of intoxicating liquor. 26
(4) A person who has had a sample of blood taken in accordance with 27
Part 3 of this Schedule because of an accident is not to be charged 28
with an offence under section 28 (1) if it is alleged as a 29
component of the offence that the person was under the influence 30
of alcohol and the offence relates to the same accident. 31
Part 8 Miscellaneous 32
33 Personal liability for good faith taking of samples 33
(1) A medical practitioner, nurse or prescribed sample taker does not 34
incur any civil or criminal liability in respect of anything properly 35
and necessarily done by the practitioner, nurse or prescribed 36
sample taker in the course of taking a sample of blood or urine 37
from a person for the purpose of its being used by an analyst to 38
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Amendments Schedule 1
detect the presence of any drug if the practitioner, nurse or 1
prescribed sample taker: 2
(a) believed on reasonable grounds that he or she was required 3
under this Act to take the sample of blood or urine from the 4
person, or 5
(b) believed on reasonable grounds that the person was 6
involved in an accident on a vessel (whether in New South 7
Wales or elsewhere) and he or she did not know, and could 8
not with reasonable diligence have ascertained, whether or 9
not he or she was required to take the sample from the 10
person under Part 3 or 4 of this Schedule, or 11
(c) was informed by an authorised officer that the person was 12
a person from whom the practitioner, nurse or prescribed 13
sample taker was required under this Act to take the 14
sample of blood or urine. 15
(2) Subclause (1) extends to any person acting under the supervision 16
of the medical practitioner, nurse or prescribed sample taker as 17
referred to in clause 13, 15 (9) or 20 (9). 18
34 Regulations for the purposes of Part 3 and this Schedule 19
(1) Regulations may be made for the purposes of Part 3 and this 20
Schedule. 21
(2) Without limiting subclause (1), the regulations may make 22
provision for or with respect to the following: 23
(a) the methods and conditions to be observed by medical 24
practitioners or nurses in taking samples of blood or urine 25
under this Schedule, 26
(b) the storage of samples so taken, 27
(c) the delivery or transmission of samples so taken to the 28
persons from whom they are taken, to authorised officers 29
or to analysts, 30
(d) the destruction of samples so taken. 31
[77] Schedule 4 Savings, transitional and other provisions 32
Insert at the end of clause 1 (1): 33
Marine Safety Amendment Act 2008 34
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Schedule 1 Amendments
[78] Schedule 4, clause 1 (4) and (5) 1
Insert after clause 1 (3): 2
(4) The regulations may make provision for or with respect to the 3
following: 4
(a) providing that a specified provision of this Act or the 5
regulations has no effect until a specified Act or 6
Regulation referred to in Schedule 2, or a specified 7
provision of any such Act or Regulation, is repealed, 8
(b) construing all references in this Act or the regulations, or 9
specified references, to marine safety licences or a 10
particular type of marine safety licence as meaning, or 11
including a reference to, a licence, permit or other 12
authorisation, or a particular type of licence, permit or 13
other authorisation, issued under an Act or Regulation 14
referred to in Schedule 2. 15
(5) For the avoidance of doubt, any provision of the regulations made 16
for the purposes of this clause may, if the regulations so provide, 17
have effect despite any specified provision of this Act (including 18
a provision of this Schedule). 19
[79] Schedule 4, Part 4 20
Insert after Part 3: 21
Part 4 Provisions consequent on enactment of 22
Marine Safety Amendment Act 2008 23
14 Definitions 24
In this clause: 25
amending Act means the Marine Safety Amendment Act 2008. 26
15 Amendments not to apply to offences occurring before the 27
commencement of amendments 28
(1) Proceedings for offences committed, or alleged to have been 29
committed, before the substitution of Part 3 and Schedule 1 by 30
the amending Act are to be determined as if the amendments had 31
not been enacted. 32
(2) Accordingly, the law (including any relevant provision of this 33
Act) that would have been applicable to the proceedings had the 34
amendments not been enacted continues to apply to the 35
proceedings as if the amendments had not been enacted. 36
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16 References to and in relation to marine safety licences in 1
section 28A 2
(1) A reference in section 28A to a marine safety licence is taken to 3
include a reference to a licence to which section 10 of the Marine 4
(Boating Safety--Alcohol and Drugs) Act 1991 applied 5
immediately before its repeal. 6
(2) A reference in section 28A: 7
(a) to the cancellation or suspension of a marine safety licence 8
is taken to include a reference to the withdrawal of 9
recognition of a recognised licence (within the meaning of 10
section 10 of the Marine (Boating Safety--Alcohol and 11
Drugs) Act 1991), and 12
(b) to the disqualification of the holder of a marine safety 13
licence is taken to include a reference to the 14
disqualification of the person from having a recognised 15
licence recognised. 16
17 Offences relating to disqualification from holding certain marine 17
safety licences 18
Section 59A or 63A (as inserted by the amending Act): 19
(a) applies only to a disqualification occurring after the 20
commencement of the section, and 21
(b) does not apply to any offence committed before the 22
commencement of the section. 23
18 Appointment of harbour masters 24
A harbour master whose appointment as harbour master was in 25
force immediately before the substitution of section 85 by the 26
amending Act is taken to have been appointed under section 85 27
as so substituted. 28
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