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Marine Safety (Domestic Commercial Vessel) National Law Bill 2012

Part 6 Powers of marine safety inspectors

Division 1 Appointment of marine safety inspectors etc.

91   Appointment of marine safety inspectors

             (1)  The National Regulator may, in writing, appoint either of the following as a marine safety inspector:

                     (a)  an officer or employee of an agency of the Commonwealth;

                     (b)  an officer or employee of an agency of a State or Territory.

             (2)  A marine safety inspector may exercise all of the powers of a marine safety inspector under this Law, or such of those powers as are specified in the inspector’s instrument of appointment.

             (3)  The National Regulator must not appoint a person as a marine safety inspector unless the National Regulator is satisfied that the person has suitable qualifications or experience to properly exercise the powers of an inspector.

             (4)  The National Regulator must not appoint an officer or employee of an agency of a State or Territory as a marine safety inspector without the agreement of the State or Territory.

             (5)  In exercising his or her powers or performing his or her functions as a marine safety inspector, the inspector must comply with any direction of the National Regulator.

92   Identity cards

             (1)  The National Regulator must issue an identity card to a marine safety inspector appointed under section 91.

             (2)  The identity card must:

                     (a)  be in the form approved by the National Regulator; and

                     (b)  contain a recent photograph of the marine safety inspector; and

                     (c)  state the powers that the inspector may exercise.

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be a marine safety inspector; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the National Regulator.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see section 13.3(3) of the Criminal Code ).

             (6)  A marine safety inspector appointed under section 91 must carry his or her identity card at all times when exercising powers and performing functions and duties as an inspector.

93   False representation about being a marine safety inspector

             (1)  A person must not make a representation that the person is a marine safety inspector if the person is not a marine safety inspector.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

94   Obstructing or hindering a marine safety inspector

                   A person must not obstruct or hinder a marine safety inspector in the exercise of his or her powers under this Law.

Penalty:  500 penalty units.



 

Division 2 Entry, search, seizure, detention and information-gathering powers

Subdivision A Powers to facilitate boarding with or without consent or warrant

95   Requirement to facilitate boarding

             (1)  A marine safety inspector may require a person to take reasonable steps to facilitate the boarding of a vessel under this Part.

             (2)  A requirement under subsection (1) may be made by any reasonable means.

             (3)  The requirement is made whether or not the person in charge of the vessel understands or is aware of the requirement.

Offence—non-compliance with requirement

             (4)  A person commits an offence if:

                     (a)  a requirement is made of the person under subsection (1); and

                     (b)  the person fails to comply with the requirement.

Penalty:  60 penalty units.

             (5)  Subsection (4) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see section 13.3(3) of the Criminal Code ).

             (6)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

96   Entering certain premises for access to domestic commercial vessel

             (1)  A marine safety inspector may enter any premises that are a structure, building or place, and are not used as a residence, to gain access to a domestic commercial vessel for a purpose referred to in section 97(1).

             (2)  Subsection (1) does not authorise a marine safety inspector to enter premises unless:

                     (a)  if the inspector has been appointed under section 91—the inspector has shown his or her identity card if required by the occupier; or

                     (b)  if the inspector is a member of the Australian Federal Police or of the police force (however described) of a State or a Territory—the inspector is in uniform, or has shown his or her police identification if required by the occupier.

             (3)  A marine safety inspector is not required to comply with subsection (2) if he or she believes on reasonable grounds that to do so would endanger a person.

             (4)  If:

                     (a)  a marine safety inspector does not comply with subsection (2) because of subsection (3); and

                     (b)  the occupier of the premises is present at the premises;

the inspector must show his or her identity card to the occupier or other person, as soon as practicable after entering the premises.

Subdivision B Powers relating to vessels, exercisable without consent or warrant

97   Boarding a vessel

             (1)  A marine safety inspector may board a vessel for any of the following purposes:

                     (a)  to ask questions under section 98;

                     (b)  monitoring purposes;

                     (c)  to issue an improvement notice or prohibition notice to a person;

                     (d)  if the regulations referred to in section 138 provide for a marine safety inspector to issue infringement notices, or notices relating to the issue of infringement notices—to issue such a notice;

                     (e)  to give a person a notice under section 101;

                      (f)  to give a direction under section 109.

             (2)  If:

                     (a)  the inspector has been appointed under section 91; and

                     (b)  the master of the vessel requests the inspector to produce identification;

the inspector must produce his or her identity card.

             (3)  If:

                     (a)  the inspector is a member of the Australian Federal Police or of the police force (however described) of a State or a Territory and is not in uniform; and

                     (b)  the master of the vessel requests the inspector to produce identification;

the inspector must produce his or her police identification.

             (4)  If the marine safety inspector fails to produce the identity card or police identification, the inspector must:

                     (a)  leave the vessel; and

                     (b)  not re-board the vessel without producing the identity card or police identification or wearing police uniform.

             (5)  A marine safety inspector is not required to comply with subsection (2), (3) or (4) if he or she believes on reasonable grounds that to do so would endanger a person.

             (6)  If a marine safety inspector does not comply with subsection (2) or (3) because of subsection (5), the inspector must, as soon as practicable after the request was made, show his or her identity card or police identification to the master.

98   Requiring master of a vessel to answer questions about the nature of the vessel

             (1)  A marine safety inspector may require the master of a vessel to:

                     (a)  answer questions put by the inspector about the nature or operations of the vessel; and

                     (b)  produce any books, records or documents about the nature or operations of the vessel requested by the inspector.

             (2)  A person commits an offence if:

                     (a)  a requirement is made of the person under subsection (1); and

                     (b)  the person fails to comply with the requirement.

Penalty:  30 penalty units.

             (3)  Subsection (2) does not apply if the person has a reasonable excuse.

99   Monitoring domestic commercial vessels

             (1)  A marine safety inspector may exercise one or more of the powers (the vessel monitoring powers ) mentioned in subsection (2) in relation to a domestic commercial vessel for monitoring purposes, whether or not the inspector is on board the vessel (and whether or not the inspector has reasonable grounds for suspecting that there may be evidential material on the vessel).

Note 1:       For example, a marine safety inspector could require a person on board a domestic commercial vessel to show him or her the safety equipment on board the vessel, even if the inspector was in another vessel.

Note 2:       If the inspector has reasonable grounds for suspecting that there may be evidential material on the vessel, section 105 gives the inspector extra powers relating to that material if he or she boards the vessel with the occupier’s consent or under an enforcement warrant. Also, section 100 gives the inspector some powers relating to evidential material found on the vessel by the exercise of the vessel monitoring powers.

             (2)  The vessel monitoring powers are as follows:

                     (a)  the power to search the vessel and any thing on the vessel;

                     (b)  the power to examine or observe any activity conducted on the vessel;

                     (c)  the power to inspect, examine, take measurements of or conduct tests on any thing on the vessel;

                     (d)  the power to make any still or moving image or any recording of the vessel or any thing on the vessel;

                     (e)  the power to inspect any document on the vessel;

                      (f)  the power to take extracts from, or make copies of, any such document;

                     (g)  the power to take onto the vessel such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the vessel;

                     (h)  the power to require a person on the vessel to show, or demonstrate the operation of, machinery or equipment on the vessel;

                      (i)  the power to require a person on the vessel to give a marine safety inspector one or more of the following:

                              (i)  the person’s name;

                             (ii)  the person’s residential address;

                            (iii)  the person’s date of birth;

                            (iv)  evidence of the person’s identity;

                      (j)  the powers set out in subsections (3), (4) and (5).

Note:          Failure to comply with a requirement is an offence: see section 102.

             (3)  The vessel monitoring powers include the power to require (by any reasonable means) the master of the vessel to do one or more of the following:

                     (a)  stop or manoeuvre the vessel;

                     (b)  adopt a specified course or speed;

                     (c)  maintain a specified course or speed;

                     (d)  take the vessel to a specified place.

Note:          Failure to comply with a requirement is an offence: see section 102.

             (4)  The vessel monitoring powers include the power, when on the vessel, to operate electronic equipment on the vessel to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the vessel; and

                             (ii)  can be used with the equipment or is associated with it;

contains information ( data ) that is relevant for monitoring purposes.

             (5)  The vessel monitoring powers include the following powers exercisable when on or leaving the vessel in relation to data found in the exercise of the power under subsections (1), (2) and (4):

                     (a)  the power to operate electronic equipment on the vessel to put the data in documentary form and remove the documents so produced from the vessel;

                     (b)  the power to operate electronic equipment on the vessel to transfer the data to a disk, tape or other storage device that:

                              (i)  is brought onto the vessel for the exercise of the power; or

                             (ii)  is on the vessel and the use of which for that purpose has been agreed in writing by the occupier of the vessel;

                            and remove the disk, tape or other storage device from the vessel.

             (6)  A marine safety inspector may operate electronic equipment as mentioned in subsection (4) or (5) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

100   Sampling, securing or seizing things found using vessel monitoring powers

             (1)  This section applies if:

                     (a)  a thing is found during the exercise of vessel monitoring powers in relation to a domestic commercial vessel; and

                     (b)  a marine safety inspector believes on reasonable grounds that:

                              (i)  the thing is evidential material; and

                             (ii)  any of the powers under this section needs to be exercised without a warrant, either because of serious and urgent circumstances or because it is not practicable to obtain a warrant, in order to prevent concealment, loss or destruction of the evidential material.

Note:          For example, it may be necessary to seize evidential material after a marine incident in order to prevent destruction of evidential material relevant to the marine incident.

             (2)  The marine safety inspector may take a sample of the thing and remove the sample from the domestic commercial vessel.

             (3)  The marine safety inspector may secure the thing for up to 72 hours.

Note:          That period may be extended: see section 123.

             (4)  The marine safety inspector may seize the thing.

             (5)  However, if the thing is equipment, or a disk, tape or other storage device, that has been operated under section 99(4), the marine safety inspector may seize the thing only if:

                     (a)  it is not practicable to put all the evidential material the thing contains in documentary form as mentioned in section 99(5)(a) or to transfer all that evidential material as mentioned in section 99(5)(b); or

                     (b)  possession of the equipment or the disk, tape or other storage device by the occupier of the vessel could constitute an offence against a law of the Commonwealth, a State or a Territory.

Note:          Division 7 requires marine safety inspectors to deal with seized things in certain ways.

             (6)  If the marine safety inspector exercises a power under this section on the basis that he or she believes on reasonable grounds the power needs to be exercised without a warrant because it is not practicable to obtain a warrant, he or she must give the National Regulator a report describing:

                     (a)  the exercise of the power; and

                     (b)  the grounds for his or her belief.

101   Detaining domestic commercial vessels

             (1)  A marine safety inspector may detain a domestic commercial vessel and bring it, or cause it to be brought, to a port, or to another place that he or she considers appropriate, if the inspector reasonably suspects that the vessel is, will be or has been involved in a contravention, either in or outside Australia, of this Law.

             (2)  If a marine safety inspector detains a domestic commercial vessel under subsection (1), the inspector must give written notice, within 14 days, to:

                     (a)  the person who holds the certificate of operation for the vessel; or

                     (b)  if no such person is able to be located—the person who had possession or control of the vessel immediately before it was detained.

             (3)  If the marine safety inspector cannot conveniently give the notice in person, the inspector may give the notice by fixing the notice to a prominent part of the vessel.

             (4)  The notice must:

                     (a)  identify the vessel; and

                     (b)  state that the vessel has been detained; and

                     (c)  specify the reason for this; and

                     (d)  specify contact details of a marine safety inspector who can provide further information; and

                     (e)  include information about the return of the vessel.

             (5)  The regulations may make provision for and in relation to the return of detained vessels, including:

                     (a)  the steps that must be taken to return detained vessels; and

                     (b)  the persons to whom detained vessels are to be returned.

Note:          Division 7 deals with costs of detention and disposal of vessels that cannot be returned.

             (6)  A person commits an offence if:

                     (a)  the person operates a vessel, or causes or permits the operation of a vessel, that has been detained under subsection (1); and

                     (b)  the vessel has not been released from detention; and

                     (c)  a marine safety inspector has not consented to the operation of the vessel by the person.

Penalty:  120 penalty units.

102   Offence—not complying with requirement made under section 99

             (1)  A person commits an offence if:

                     (a)  a requirement is made of the person:

                              (i)  under section 99(2)(h) (to show, or demonstrate the operation of, machinery or equipment on a domestic commercial vessel); or

                             (ii)  under section 99(2)(i) (to give a marine safety inspector the person’s name, the person’s residential address, the person’s date of birth or evidence of the person’s identity); or

                            (iii)  under section 99(3) (to stop or manoeuvre a vessel, adopt or maintain a specified course or speed or take a vessel to a specified place); and

                     (b)  the person fails to comply with the requirement.

Penalty:  60 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see section 13.3(3) of the Criminal Code ).

             (3)  A person commits an offence if:

                     (a)  a requirement is made of the person under section 99(2)(i) to give a marine safety inspector the person’s name, the person’s residential address, the person’s date of birth or evidence of the person’s identity; and

                     (b)  the person gives a name, address, date or evidence of the person’s identity; and

                     (c)  the name, address, date or evidence is false or misleading in a material particular.

Penalty:  60 penalty units.

             (4)  An offence against subsection (1) or (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

Subdivision C Powers relating to any premises, exercisable with consent or warrant

103   Entering premises with consent or under warrant

             (1)  A marine safety inspector may enter any premises for monitoring purposes.

             (2)  A marine safety inspector may enter any premises if he or she has reasonable grounds for suspecting that there may be evidential material on the premises.

             (3)  Despite subsections (1) and (2), a marine safety inspector is not authorised to enter the premises unless:

                     (a)  the occupier of the premises has consented to the entry, and:

                              (i)  if the inspector has been appointed under section 91—the inspector has shown his or her identity card if required by the occupier; or

                             (ii)  if the inspector is a member of the Australian Federal Police or of the police force (however described) of a State or a Territory—the inspector is in uniform, or has shown his or her police identification if required by the occupier; or

                     (b)  the entry is made under a warrant.

Note 1:       This does not limit a marine safety inspector’s power to enter premises under section 96 or 97: see section 108.

Note 2:       Section 115 contains rules about obtaining consent and leaving premises if consent is withdrawn.

Note 3:       Sections 116, 117, 118, 119 and 120 contain rules relevant to entry under a warrant.

104   Monitoring premises

             (1)  A marine safety inspector may exercise one or more of the powers (the general monitoring powers ) mentioned in subsection (2) in relation to premises for monitoring purposes (whether or not the inspector has reasonable grounds for suspecting that there may be evidential material on the premises).

Note:          If the inspector has reasonable grounds for suspecting that there may be evidential material on the premises, section 105 gives the inspector extra powers relating to that material if he or she enters the premises with the occupier’s consent or under an enforcement warrant.

             (2)  The general monitoring powers are as follows:

                     (a)  the power to search the premises and any thing on the premises;

                     (b)  the power to examine or observe any activity conducted on the premises;

                     (c)  the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;

                     (d)  the power to make any still or moving image or any recording of the premises or any thing on the premises;

                     (e)  the power to inspect any document on the premises;

                      (f)  the power to take extracts from, or make copies of, any such document;

                     (g)  the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers set out in subsections (3), (4), (6) and (7).

             (3)  The general monitoring powers include the power to operate electronic equipment on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information ( data ) that is relevant for monitoring purposes.

             (4)  The general monitoring powers include the following powers exercisable when on or leaving premises in relation to data found in the exercise of the power under subsections (1), (2) and (3):

                     (a)  the power to operate electronic equipment on the premises to put the data in documentary form and remove the documents so produced from the premises;

                     (b)  the power to operate electronic equipment on the premises to transfer the data to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;

                            and remove the disk, tape or other storage device from the premises.

             (5)  A marine safety inspector may operate electronic equipment as mentioned in subsection (3) or (4) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

             (6)  The general monitoring powers include the power to secure a thing on premises for up to 72 hours if:

                     (a)  the thing is found during the exercise of general monitoring powers on the premises; and

                     (b)  a marine safety inspector believes on reasonable grounds that:

                              (i)  the thing affords evidence of the commission of an offence against this Law; and

                             (ii)  it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and

                            (iii)  it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

Note:          The period for which the thing is secured may be extended: see section 123.

105   Enforcement powers

             (1)  If a marine safety inspector has reasonable grounds for suspecting that there may be evidential material on any premises, the inspector may exercise the following powers (the enforcement powers ) in relation to the premises:

                     (a)  if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the inspector has reasonable grounds for suspecting may be on the premises;

                     (b)  if entry to the premises is under an enforcement warrant:

                              (i)  the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and

                             (ii)  the power to seize evidential material of that kind if the inspector finds it on the premises;

                     (c)  the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b);

                     (d)  the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b);

                     (e)  the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;

                      (f)  the power to require a person on the premises to demonstrate the operation of machinery or equipment on the premises;

                     (g)  the powers set out in subsections (2), (3) and (6).

Note:          Division 7 requires marine safety inspectors to deal with seized things in certain ways.

             (2)  The enforcement powers include the power to operate electronic equipment on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains evidential material referred to in subsection (1)(a) or (b).

             (3)  The enforcement powers include the following powers exercisable when on or leaving premises in relation to evidential material described in subsection (2) found in the exercise of the power under that subsection:

                     (a)  if entry to the premises is under an enforcement warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;

                     (b)  the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;

                     (c)  the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed, in writing, by the occupier of the premises;

                            and remove the disk, tape or other storage device from the premises.

             (4)  A marine safety inspector may operate electronic equipment as mentioned in subsection (2) or (3) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

             (5)  A marine safety inspector may seize equipment or a disk, tape or other storage device as mentioned in subsection (3)(a) only if:

                     (a)  it is not practicable to put the evidential material in documentary form as mentioned in subsection (3)(b) or to transfer the evidential material as mentioned in subsection (3)(c); or

                     (b)  possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth, a State or a Territory.

             (6)  If:

                     (a)  entry to the premises is under an enforcement warrant; and

                     (b)  the marine safety inspector, in the course of searching for the kind of evidential material specified in the warrant, finds a thing that the inspector believes on reasonable grounds to be other evidential material; and

                     (c)  the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction;

then the enforcement powers include seizing the thing.

106   Requiring persons on premises entered under warrant to answer questions and produce documents

             (1)  A marine safety inspector who is on or in premises that he or she has entered under a warrant may require anyone on or in the premises to:

                     (a)  answer any questions put by the inspector; and

                     (b)  produce any books, records or documents requested by the inspector.

             (2)  A person commits an offence if:

                     (a)  a requirement is made of the person under subsection (1); and

                     (b)  the person fails to comply with the requirement.

Penalty:  30 penalty units.

             (3)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see section 13.3(3) of the Criminal Code ).

107   Using force in executing a warrant

                   In executing a warrant, a marine safety inspector may use such force against persons and things as is necessary and reasonable in the circumstances.

108   Relationship with Subdivision B

             (1)  This Subdivision does not limit Subdivision B.

             (2)  Subdivision B does not prevent this Subdivision from applying to premises that are domestic commercial vessels.

Division 3 Other powers

109   Giving directions

             (1)  If a marine safety inspector believes on reasonable grounds that:

                     (a)  a person is contravening a provision of this Law in respect of a thing; or

                     (b)  at least one of the following applies:

                              (i)  it is necessary to exercise powers under this section in order to protect the safety of people or to protect the environment;

                             (ii)  it is desirable in the public interest for the inspector to exercise powers under this section;

the inspector may give the person a direction requiring the person, within the time specified in the direction, to take such steps in relation to the thing as are reasonable in the circumstances.

Note:          For example, a marine safety inspector could give a direction that a person not operate an unsafe vessel.

             (2)  The direction must be given in writing, unless the marine safety inspector believes there is an urgent need to protect the safety of people or to protect the environment.

             (3)  A person commits an offence if he or she does not take the steps specified in a direction under subsection (1) within the time specified in the direction.

Penalty:  60 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (5)  If the person does not take the steps specified in the direction within the time specified in the direction, the inspector may arrange for those steps to be taken.

             (6)  If the National Regulator incurs costs because of arrangements made by the inspector under subsection (5), the person is liable to pay to the National Regulator an amount equal to the costs, and the amount may be recovered by the National Regulator as a debt due to the National Regulator in a court of competent jurisdiction.

             (7)  A time specified in a direction under subsection (1) must be reasonable having regard to the circumstances.

110   Issuing improvement notices

             (1)  If a marine safety inspector believes on reasonable grounds that a person:

                     (a)  is contravening a provision of this Law; or

                     (b)  has contravened a provision of this Law and is likely to contravene that provision again;

the inspector may issue an improvement notice, in writing, to the person.

             (2)  The notice must:

                     (a)  specify the contravention of this Law that the marine safety inspector believes is occurring or is likely to occur; and

                     (b)  set out the reasons for that belief; and

                     (c)  specify a period within which the person is to take the action necessary to prevent any further contravention, or to prevent the likely contravention, as the case may be.

             (3)  The period specified in the notice must be reasonable.

             (4)  The notice may specify action that the person is to take, or is not to take, during the period specified in the notice.

             (5)  Before the end of the specified period, the marine safety inspector may extend that period in writing.

             (6)  The person must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control.

             (7)  A person subject to a requirement under subsection (6) commits an offence if an act or omission of the person breaches the requirement.

Penalty:  60 penalty units.

             (8)  An offence against subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

111   Issuing prohibition notices

             (1)  This section applies if a marine safety inspector believes on reasonable grounds that:

                     (a)  an activity is occurring in relation to a domestic commercial vessel that involves or will involve a risk to the safety of a person or a serious risk to the environment; or

                     (b)  an activity may occur in relation to a domestic commercial vessel that, if it occurs, will involve a risk to the safety of a person or a serious risk to the environment.

             (2)  The marine safety inspector may issue a prohibition notice to the responsible person in relation to the domestic commercial vessel. For this purpose, the responsible person is:

                     (a)  the master of the vessel; or

                     (b)  if the inspector cannot locate the master:

                              (i)  the person who holds the certificate of operation for the vessel; or

                             (ii)  if the inspector cannot locate that person—the person who has possession or control of the vessel.

             (3)  The notice must:

                     (a)  specify the activity the marine safety inspector believes involves or will involve the risk to safety or the environment, and set out the reasons for that belief; and

                     (b)  either:

                              (i)  direct the responsible person to ensure that the activity is not engaged in; or

                             (ii)  direct the responsible person to ensure that the activity is not engaged in in a specified manner.

Note:          For example, a notice could specify that a person not operate an unsafe vessel.

             (4)  A specified manner may relate to any one or more of the following:

                     (a)  any vessel, or part of a vessel, in relation to which the activity is not to be engaged in;

                     (b)  any thing that is not to be used in connection with the activity;

                     (c)  any procedure that is not to be followed in connection with the activity.

             (5)  The notice ceases to have effect when a marine safety inspector notifies the responsible person that the inspector is satisfied that the responsible person has taken adequate action to remove the risk to safety or the environment.

             (6)  The notice may specify action that may be taken to satisfy a marine safety inspector that adequate action has been taken to remove the risk to safety or the environment.

             (7)  If a marine safety inspector is satisfied that action taken by the responsible person to remove the risk to safety or the environment is not adequate, the inspector must inform the person accordingly.

             (8)  In making a decision under subsection (7), a marine safety inspector may exercise any of the vessel monitoring powers and general monitoring powers that the inspector considers necessary for the purposes of making the decision.

             (9)  A person issued with a notice under subsection (2) commits an offence if an act or omission of the person breaches the notice.

Penalty:  60 penalty units.

           (10)  An offence against subsection (9) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

112   Copies of notices to be displayed and distributed

             (1)  If a person (the recipient ) is given an improvement notice under section 110(1) or a prohibition notice under section 111(2) in relation to a vessel:

                     (a)  the recipient must cause a copy of the notice to be displayed:

                              (i)  in a place directed by the marine safety inspector who issued the notice; or

                             (ii)  if the marine safety inspector does not give a direction—in a prominent place on or near the vessel; and

                     (b)  the marine safety inspector who issued the notice must give a copy of the notice to:

                              (i)  the master of the vessel; and

                             (ii)  the person who holds the certificate of operation for the vessel or, if no such person is able to be located, the person who had possession or control of the vessel immediately before the notice was issued.

             (2)  A person required by subsection (1)(a) to display a notice commits an offence if an act or omission of the person contravenes the requirement.

Penalty:  60 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

113   Notices not to be tampered with or removed

             (1)  A person must not:

                     (a)  tamper with a notice while it is displayed under section 112; or

                     (b)  remove a notice that has been displayed before the notice has ceased to have effect.

Penalty:  60 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see section 13.3(3) of the Criminal Code ).

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

Division 4 Persons assisting marine safety inspectors

114   Persons assisting marine safety inspectors

             (1)  A marine safety inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.

             (2)  A person assisting the marine safety inspector:

                     (a)  may enter the premises; and

                     (b)  may exercise powers and perform functions and duties under this Part; and

                     (c)  must do so in accordance with a direction given by the inspector to the person assisting.

             (3)  In executing a warrant, a person assisting the marine safety inspector may use such force against things as is necessary and reasonable in the circumstances.

             (4)  A power exercised by a person assisting the marine safety inspector as mentioned in subsection (2) is taken for all purposes to have been exercised by the inspector.

             (5)  A function or duty performed by a person assisting the marine safety inspector as mentioned in subsection (2) is taken for all purposes to have been performed by the inspector.



 

Division 5 Obligations and incidental powers of marine safety inspectors

115   Consent

             (1)  A marine safety inspector must, before obtaining the consent of an occupier of premises for the purposes of section 103(3)(a), inform the occupier that the occupier may refuse consent.

             (2)  A consent has no effect unless the consent is voluntary.

             (3)  A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

             (4)  A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

             (5)  If a marine safety inspector entered premises under section 103 because of the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises if the consent ceases to have effect.

116   Announcement before entry under warrant

             (1)  A marine safety inspector must, before entering premises under a warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  if the inspector was appointed under section 91—show his or her identity card to the occupier of the premises if the occupier is present at the premises; and

                     (c)  if the inspector is a member of the Australian Federal Police or of the police force (however described) of a State or a Territory and is not in uniform—show his or her police identification to the occupier of the premises if the occupier is present at the premises; and

                     (d)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  However, a marine safety inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

                     (a)  to ensure the safety of a person; or

                     (b)  to ensure that the effective execution of the warrant is not frustrated.

             (3)  If:

                     (a)  a marine safety inspector does not comply with subsection (1) because of subsection (2); and

                     (b)  the occupier of the premises is present at the premises;

the inspector must, as soon as practicable after entering the premises, show his or her identity card or police identification to the occupier.

117   Marine safety inspector to be in possession of warrant

                   If a warrant is being executed in relation to premises, a marine safety inspector executing the warrant must be in possession of the warrant or a copy of the warrant.

118   Details of warrant etc. to be given to occupier

                   If:

                     (a)  a warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises is present at the premises;

a marine safety inspector executing the warrant must, as soon as practicable:

                     (c)  make a copy of the warrant available to the occupier (which need not include the signature of the magistrate who issued it); and

                     (d)  inform the occupier of the rights and responsibilities of the occupier under Division 6.

119   Completing execution of warrant after temporary cessation

             (1)  This section applies if a marine safety inspector, and all persons assisting, who are executing a warrant in relation to premises temporarily cease its execution and leave the premises.

             (2)  The marine safety inspector, and persons assisting, may complete the execution of the warrant if:

                     (a)  the warrant is still in force; and

                     (b)  the inspector and persons assisting are absent from the premises:

                              (i)  for not more than 1 hour; or

                             (ii)  if there is an emergency—for not more than 12 hours or such longer period as allowed by a magistrate under subsection (5); or

                            (iii)  for a longer period if the occupier of the premises consents in writing.

             (3)  A marine safety inspector, or person assisting, may apply to a magistrate for an extension of the 12-hour period mentioned in subsection (2)(b)(ii) if:

                     (a)  there is an emergency; and

                     (b)  the inspector or person assisting believes on reasonable grounds that the inspector and the persons assisting will not be able to return to the premises within that period.

             (4)  If it is practicable to do so, before making the application, the marine safety inspector or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.

             (5)  A magistrate may extend the period during which the marine safety inspector and persons assisting may be away from the premises if:

                     (a)  an application is made under subsection (3); and

                     (b)  the magistrate is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and

                     (c)  the extension would not result in the period ending after the warrant ceases to be in force.

120   Completing execution of warrant stopped by court order

                   A marine safety inspector, and any persons assisting, may complete the execution of a warrant that has been stopped by an order of a court if:

                     (a)  the order is later revoked or reversed on appeal; and

                     (b)  the warrant is still in force when the order is revoked or reversed.

121   Expert assistance to operate electronic equipment

             (1)  This section applies to premises to which a warrant relates.

             (2)  If a marine safety inspector believes on reasonable grounds that:

                     (a)  there is on the premises information ( data ) relevant to the monitoring purposes or determining whether there is evidential material on the premises; and

                     (b)  the data may be accessible by operating electronic equipment on the premises; and

                     (c)  expert assistance is required to operate the equipment; and

                     (d)  if he or she does not take action under this subsection, the data may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment for up to 72 hours, whether by locking it up, placing a guard or other means.

             (3)  The marine safety inspector must give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 72 hours.

Note:          That period may be extended: see section 123.

122   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of electronic equipment being operated as mentioned in this Part:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The National Regulator must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the National Regulator and the owner or user agree on.

             (3)  However, if the owner or user and the National Regulator fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  For the purposes of subsection (1):

damage , in relation to data, includes damage by erasure of data or addition of other data.

123   Extending period for which something is secured

             (1)  If a marine safety inspector believes on reasonable grounds that a thing needs to be secured under section 100(3), 104(6) or 121(2) for more than 72 hours, he or she may apply to a magistrate for an extension of that period.

             (2)  The marine safety inspector must give notice to the occupier of the premises on which the thing is secured of the inspector’s intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

             (3)  The provisions of this Part relating to the issue of warrants apply, with such modifications as are necessary, to the issue of an extension.

             (4)  The 72-hour period may be extended more than once.

124   Offence—interfering with securing of thing

                   A person commits an offence if:

                     (a)  a marine safety inspector is securing, or has secured, a thing under section 100(3), 104(6) or 121(2); and

                     (b)  the person interferes with the securing of the thing, or the secured thing; and

                     (c)  the period for which the thing is secured has not ended.

Penalty:  500 penalty units.



 

Division 6 Occupier’s rights and responsibilities

125   Occupier entitled to observe execution of warrant

             (1)  If:

                     (a)  a warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises is present at the premises;

the occupier is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the occupier impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

126   Occupier to provide marine safety inspector with facilities and assistance

             (1)  The occupier of premises to which a warrant relates must provide:

                     (a)  a marine safety inspector executing the warrant; and

                     (b)  any person assisting the inspector;

with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person subject to subsection (1) commits an offence if the person fails to comply with that subsection.

Penalty:  30 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .



 

Division 7 General provisions relating to seizure and detention

127   Copies of seized things to be provided

             (1)  This section applies if a marine safety inspector seizes one or more of the following from the premises under this Part:

                     (a)  a document, film, computer file or other thing that can be readily copied;

                     (b)  a storage device, the information in which can be readily copied.

             (2)  The occupier of the premises may request the marine safety inspector to give a copy of the thing or the information to the occupier.

             (3)  The marine safety inspector must comply with the request as soon as practicable after the seizure.

             (4)  However, the marine safety inspector is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier could constitute an offence against a law of the Commonwealth, a State or a Territory.

128   Receipts for seized things

             (1)  If a thing is seized under this Part, a marine safety inspector must provide a receipt for the thing.

             (2)  If 2 or more things are seized, they may be covered in the one receipt.

129   Return of seized things

             (1)  The marine safety inspector must take reasonable steps to return a thing seized under this Part when the earliest of the following happens:

                     (a)  the reason for the thing’s seizure no longer exists;

                     (b)  it is decided that the thing is not to be used in evidence;

                     (c)  the period of 60 days after the thing’s seizure ends.

Note:          See subsections (2) and (3) for exceptions to this rule.

Exceptions

             (2)  Subsection (1):

                     (a)  is subject to any contrary order of a court; and

                     (b)  does not apply if the thing:

                              (i)  is forfeited or forfeitable to the Commonwealth; or

                             (ii)  is the subject of a dispute as to ownership.

             (3)  The marine safety inspector is not required to take reasonable steps to return a thing because of subsection (1)(c) if:

                     (a)  proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                     (b)  the thing may continue to be retained because of an order under section 130; or

                     (c)  the Commonwealth, the National Regulator or a marine safety inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth, a State or a Territory) to retain, destroy, dispose of or otherwise deal with the thing.

Return of thing

             (4)  A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

130   Magistrate may permit a thing to be retained

             (1)  A marine safety inspector may apply to a magistrate for an order permitting the retention of the thing for a further period if:

                     (a)  before the end of 60 days after the seizure; or

                     (b)  before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not been instituted.

             (2)  If the magistrate is satisfied that it is necessary for the thing to continue to be retained:

                     (a)  for the purposes of an investigation in respect of an offence against this Law; or

                     (b)  to enable evidence of an offence against this Law to be secured for the purposes of a prosecution;

the magistrate may order that the thing may continue to be retained for a period specified in the order (which must not exceed 3 years).

             (3)  Before making the application, the marine safety inspector must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

131   Costs of detention

             (1)  The National Regulator is liable to pay to the owner of a domestic commercial vessel a reasonable amount of compensation:

                     (a)  for the costs of, and incidental to, the detention of the vessel; and

                     (b)  for any loss or damage incurred by the owner as a result of the detention of the vessel;

if there was no reasonable or probable cause for the detention of the vessel.

             (2)  If:

                     (a)  a domestic commercial vessel is detained under this Division; and

                     (b)  the National Regulator incurs costs in connection with the detention of the vessel; and

                     (c)  the detention was reasonable in the circumstances;

the owner of the vessel is liable to pay to the National Regulator compensation of a reasonable amount in respect of the detention of the vessel.

             (3)  If the National Regulator and the owner of the vessel do not agree on the amount of compensation payable under subsection (1) or (2), the National Regulator or the owner may institute proceedings in a court of competent jurisdiction for the recovery of such reasonable amount of compensation as the court determines.

132   Disposal of seized things and detained vessels

             (1)  The National Regulator may dispose of a thing seized, or a vessel detained, under this Part if:

                     (a)  the National Regulator has:

                              (i)  in the case of a seized thing—taken reasonable steps to return the thing to a person; or

                             (ii)  in the case of a detained vessel—taken the steps required by the regulations to return the vessel to a person; and

                     (b)  one of the following applies:

                              (i)  the National Regulator has been unable to locate the person, despite making reasonable efforts;

                             (ii)  the person has refused to take possession of the thing or vessel;

                            (iii)  the National Regulator has contacted the person about the return of the thing or vessel, and the person has not refused to take possession of the thing or vessel, but has not taken possession of the thing or vessel within 3 months of the contact.

             (2)  The National Regulator may dispose of the thing or vessel in such manner as the National Regulator thinks appropriate.

133   Compensation for acquisition of property

             (1)  If the operation of section 132 would result in an acquisition of property from a person otherwise than on just terms, the National Regulator is liable to pay a reasonable amount of compensation to the person.

             (2)  If the National Regulator and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the National Regulator of such reasonable amount of compensation as the court determines.



 

Division 8 Warrants

134   Monitoring warrants

             (1)  A marine safety inspector may apply to a magistrate for a warrant under this section in relation to premises.

             (2)  The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more marine safety inspectors should have access to the premises for monitoring purposes.

             (3)  However, the magistrate must not issue the warrant unless the marine safety inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  describe the premises to which the warrant relates; and

                     (b)  state that the warrant is issued under this section; and

                     (c)  state the purpose for which the warrant is issued; and

                     (d)  authorise one or more marine safety inspectors (whether or not named in the warrant) from time to time while the warrant remains in force:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in sections 103, 104, 106 and 107, and Division 5, in relation to the premises; and

                     (e)  state whether entry is authorised to be made at any time of the day or during specified hours of the day; and

                      (f)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to be in force.

135   Enforcement warrants

             (1)  A marine safety inspector may apply to a magistrate for a warrant under this section in relation to premises.

             (2)  The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.

             (3)  However, the magistrate must not issue the warrant unless the marine safety inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  describe the premises to which the warrant relates; and

                     (b)  state that the warrant is issued under this section; and

                     (c)  specify the offence or offences to which the warrant relates; and

                     (d)  specify the kind of evidential material that is to be searched for under the warrant; and

                     (e)  name one or more marine safety inspectors; and

                      (f)  authorise the inspector or inspectors so named:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in sections 103, 105, 106 and 107, Division 5 and section 130 in relation to the premises; and

                     (g)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                     (h)  specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.

136   Enforcement warrants by telephone, fax etc.

             (1)  A marine safety inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 135 in relation to premises:

                     (a)  in an urgent case; or

                     (b)  if the inspector believes, on reasonable grounds, that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  The magistrate may require communication by voice to the extent that it is practicable in the circumstances.

             (3)  An application under this section must include all information (of the kind mentioned in section 135(2)) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.

             (4)  If the magistrate is satisfied:

                     (a)  after considering the information; and

                     (b)  after receiving such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 135 if the application had been made under that section.

             (5)  If the magistrate completes and signs the warrant, the magistrate must inform the inspector, by telephone, fax or other electronic means, of:

                     (a)  the terms of the warrant; and

                     (b)  the day on which, and the time at which, the warrant was signed.

             (6)  The marine safety inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form:

                     (a)  the name of the magistrate; and

                     (b)  the day on which, and the time at which, the warrant was signed.

             (7)  The marine safety inspector must also, not later than the day after the earlier of the following days:

                     (a)  the day on which the warrant ceased to be in force;

                     (b)  the day of execution of the warrant;

send to the magistrate:

                     (c)  the form of warrant completed by the inspector; and

                     (d)  the information referred to in subsection (3), which must have been duly sworn or affirmed.

             (8)  The magistrate must attach to the documents provided under subsection (7) the warrant signed by the magistrate.

             (9)  A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

           (10)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

                     (b)  the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

137   Offence relating to warrants by telephone, fax etc.

                   A marine safety inspector commits an offence if:

                     (a)  the inspector states in a document that purports to be a form of warrant under section 136 the name of a magistrate, unless that magistrate signed the warrant; or

                     (b)  the inspector states on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the magistrate under that section; or

                     (c)  the inspector purports to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows:

                              (i)  has not been approved by a magistrate under that section; or

                             (ii)  departs in a material particular from the terms of a warrant signed by a magistrate under that section; or

                     (d)  the inspector gives to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.

Penalty:  Imprisonment for 2 years.