Western Australian Consolidated Acts

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WESTERN AUSTRALIAN MARINE ACT 1982 - NOTES

Notes

1 This is a compilation of the Western Australian Marine Act 1982 and includes the amendments made by the other written laws referred to in the following table 1a. The table also contains information about any reprint.

Compilation table

Short title

Number and year

Assent

Commencement

Western Australian Marine Act 1982

55 of 1982

5 Nov 1982

1 Jul 1983 (see s. 2 and Gazette 24 Jun 1983 p. 1977)

Western Australian Marine Amendment Act 1990

35 of 1990

9 Oct 1990

Act other than s. 4(b) and (d), 6-9, 12 and 21: 9 Jun 1992 (see s. 2 and Gazette 9 Jun 1992 p. 2379);
s. 4(b) and 21: 1 Jan 1994 (see s. 2 and Gazette 31 Dec 1993 p. 6861)

Financial Administration Legislation Amendment Act 1993 s. 11

6 of 1993

27 Aug 1993

1 Jul 1993 (see s. 2(1))

Acts Amendment (Department of Transport) Act 1993 Pt. 15

47 of 1993

20 Dec 1993

1 Jan 1994 (see s. 2 and Gazette 31 Dec 1993 p. 6861)

Acts Amendment (Public Sector Management) Act 1994 s. 19

32 of 1994

29 Jun 1994

1 Oct 1994 (see s. 2 and Gazette 30 Sep 1994 p. 4948)

Acts Amendment (Fines, Penalties and Infringement Notices) Act 1994 Pt. 21

92 of 1994

23 Dec 1994

1 Jan 1995 (see s. 2(1) and Gazette 30 Dec 1994 p. 7211)

Sentencing (Consequential Provisions) Act 1995 Pt. 83 and s. 147

78 of 1995

16 Jan 1996

4 Nov 1996 (see s. 2 and Gazette 25 Oct 1996 p. 5632)

Financial Legislation Amendment Act 1996 s. 64

49 of 1996

25 Oct 1996

25 Oct 1996 (see s. 2(1))

Statutes (Repeals and Minor Amendments) Act 1997 s. 130

57 of 1997

15 Dec 1997

15 Dec 1997 (see s. 2(1))

Reprint of the Western Australian Marine Act 1982 as at 28 Jan 2000 (includes amendments listed above)

Statutes (Repeals and Minor Amendments) Act 2003 s. 130

74 of 2003

15 Dec 2003

15 Dec 2003 (see s. 2)

Dangerous Goods Safety Act 2004 s. 70

7 of 2004

10 Jun 2004

1 Mar 2008 (see s. 2 and Gazette 29 Feb 2008 p. 669)

Courts Legislation Amendment and Repeal Act 2004 s. 141

59 of 2004

23 Nov 2004

1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 135 2

55 of 2004

24 Nov 2004

1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 80

84 of 2004

16 Dec 2004

2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))

Reprint 2: The Western Australian Marine Act 1982 as at 2 Dec 2005 (includes amendments listed above, except those in the Dangerous Goods Safety Act 2004 s. 70)

Financial Legislation Amendment and Repeal Act 2006 s. 4

77 of 2006

21 Dec 2006

1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)

Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 137

8 of 2009

21 May 2009

22 May 2009 (see s. 2(b))

Standardisation of Formatting Act 2010 s. 4

19 of 2010

28 Jun 2010

11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)

Personal Property Securities (Consequential Repeals and Amendments) Act 2011 Pt. 12 Div. 7

42 of 2011

4 Oct 2011

30 Jan 2012 (see s. 2(c) and Cwlth Legislative Instrument No. F2011L02397 cl. 5 registered 21 Nov 2011)

1a On the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Short title

Number and year

Assent

Commencement

Western Australian Marine Amendment Act 1987 s. 4-6 3

15 of 1987

25 Jun 1987

To be proclaimed (see s. 2)

Western Australian Marine Amendment Act 1990 s. 4(d), 6-9 and 12 4

35 of 1990

9 Oct 1990

To be proclaimed (see s. 2)

2 The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

3 On the date as at which this compilation was prepared, the Western Australian Marine Amendment Act 1987 s. 4-6 had not come into operation. They read as follows:

4. Section 76 amended

Section 76 of the principal Act is amended by inserting after the definition of “Prevention of Collisions Convention” the following definition —


Prevention of Pollution from Ships Convention has the same meaning as ‘Convention’ has in the Pollution of Waters by Oil and Noxious Substances Act 1987;

”.

5. Section 78 amended

Section 78 of the principal Act is amended by inserting after “the Safety Convention”, in both places where it occurs, the following —

“ , the Prevention of Pollution from Ships Convention ”.

6. Divisions 6 and 7 of Part IV inserted

After Division 5 of Part IV of the principal Act, the following Divisions are inserted —


Division 6 — Prevention of Pollution from Ships Convention (Ships Carrying or Using Oil)

90A. Interpretation

(1) In this Division, unless the contrary intention appears —

Annex I means Annex I to the Prevention of Pollution from Ships Convention;

foreign ship means a ship that is not an Australian ship.

(2) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Prevention of Pollution from Ships Convention, including Annex I but not including any other Annex to that Convention, (whether or not a particular meaning is assigned to it by that Convention) has, in this Division, the same meaning as in that Convention.

(3) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex I if it does not comply with the regulations and orders referred to in section 90B.

90B. Regulations to give effect to Regulations 13 to 19 (inclusive) of Annex I

(1) The regulations may make provision for and in relation to giving effect to Regulations 13 to 19 (inclusive) of Annex I.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(3) Sections 37, 41 and 42 of the Interpretation Act 1984 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to regulations were references to such orders and references in those sections to an Act included a reference to regulations.

(4) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

(5) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Act and the regulations and so as not to exceed the power conferred by this Act and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(6) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this Act or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

90C. Ship construction certificates

Where, on receipt of declarations of survey in respect of a ship, the Minister is satisfied that the ship is constructed in accordance with the provisions of Annex I, he may, whether or not the ship is required by Annex I to be constructed in accordance with those provisions, issue in respect of the ship a ship construction certificate in the prescribed form attesting such compliance.

90D. Alteration, etc. of construction of ships and cancellation of certificates

(1) Where the construction of a ship in respect of which a ship construction certificate issued under section 90C is in force is altered, or such a ship is damaged, in a manner which affects its compliance with the provisions of Annex I, the master or owner of the ship shall, within 7 days after the construction of the ship is altered or the ship is damaged, as the case may be, give a notice in writing of the alteration or damage to such person, and in such form, as are prescribed and, if the notice is not so given, the master and the owner of the ship are each guilty of an offence punishable upon conviction by a fine not exceeding —

(a) if the offender is a natural person — $1 000; or

(b) if the offender is a body corporate —$5 000.

(2) Where a notice required to be given under subsection (1) is not given within the period referred to in that subsection, the following provisions of this subsection have effect —

(a) the obligation to give the notice continues, notwithstanding that that period has expired, until the notice is given;

(b) the master and the owner of the ship are each guilty of a separate and further offence in respect of each day during which the notice is not given, being a day after the expiration of that period;

(c) the penalty applicable to each such separate and further offence is a fine not exceeding —

(i) if the offender is a natural person — $1 000; or

(ii) if the offender is a body corporate — $5 000.

(3) Where the Minister has reason to believe that —

(a) the report of a surveyor concerning a ship in respect of which a ship construction certificate issued under section 90C is in force was fraudulently or erroneously made or obtained;

(b) a ship construction certificate has been issued under section 90C in respect of a ship upon false or erroneous information;

(c) the construction of a ship in respect of which a ship construction certificate issued under section 90C is in force has been altered, or such a ship has been damaged, in a manner which affects its compliance with the provisions of Annex I; or

(d) the owner of a ship in respect of which a ship construction certificate issued under section 90C is in force has failed to comply with section 90E in respect of the ship,

he may, by instrument signed by him, cancel the certificate.

(4) Where the Minister cancels a ship construction certificate issued by him in respect of a ship, the certificate is of no force or effect after the Minister has given notice in writing of the cancellation addressed to the owner, agent or master of the ship and served in accordance with the regulations.

(5) Where a ship construction certificate issued in respect of a ship is cancelled under this section, the Minister may, by notice in writing addressed to the owner, agent or master of the ship and served in accordance with the regulations, require the certificate to be delivered up to the Minister or to such other person as the Minister specifies, and the Minister may detain the ship until the requirement is complied with.

90E. Ships to be surveyed periodically

(1) The owner of a ship in respect of which a ship construction certificate issued under section 90C is in force shall, at least once during each period that is a prescribed period in relation to the ship for the purposes of this section, cause the ship to be surveyed for the purpose of ensuring its compliance with the provisions of Annex I.

(2) Where the owner of a ship in respect of which a ship construction certificate issued under section 90C is in force fails to comply with subsection (1) in relation to the ship and to a period that is a prescribed period in relation to the ship, the owner is guilty of an offence punishable on conviction by a fine not exceeding —

(a) if the owner is a natural person — $2 000; or

(b) if the owner is a body corporate — $10 000.

90F. Requirement for ship construction certificates

(1) This section applies to —

(a) a trading ship proceeding on an intrastate voyage;

(b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage; or

(c) a pleasure vessel,

that is —

(d) an oil tanker of 150 tons gross tonnage and above; or

(e) a ship, other than an oil tanker, of 400 tons gross tonnage and above.

(2) The master of a ship to which this section applies shall not begin a voyage unless there is in force in respect of the ship a ship construction certificate.

Penalty: $10 000 or imprisonment for 4 years, or both.

(3) The owner of a ship to which this section applies shall not permit the ship to begin a voyage unless there is in force in respect of the ship a ship construction certificate.

Penalty —

(a) if the offender is a natural person — $10 000, or imprisonment for 4 years, or both; or

(b) if the offender is a body corporate — $50 000.

(4) The regulations may exempt ships included in a prescribed class of ships from the application of subsection (1), either absolutely or subject to conditions.

(5) In this section “ship construction certificate” means —

(a) a ship construction certificate issued under section 90C;

(b) a ship construction certificate issued under section 267B of the Navigation Act;

(c) a ship construction certificate issued under a law of another State or the Northern Territory and being a certificate of a kind prescribed as acceptable for the purposes of this Division;

(d) an International Oil Pollution Prevention Certificate issued to a foreign ship under section 267C of the Navigation Act; or

(e) an International Oil Pollution Prevention Certificate issued to an Australian ship under the law of a country other than Australia giving effect to Regulation 6 of Annex I.

(6) The owner of a ship to which this section applies in respect of which a ship construction certificate is in force shall cause the certificate to be carried on board the ship.

Penalty: $1 000.

Division 7 — Prevention of Pollution from Ships Convention (Ships Carrying Noxious Liquid Substances in Bulk)

90G. Interpretation

(1) In this Division, unless the contrary intention appears —

Annex II means Annex II to the Prevention of Pollution from Ships Convention;

foreign ship means a ship that is not an Australian ship.

(2) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Prevention of Pollution from Ships Convention, including Annex II but not including any other Annex to that Convention, (whether or not a particular meaning is assigned to it by that Convention) has, in this Division, the same meaning as in that Convention.

(3) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex II if it does not comply with the regulations and orders referred to in section 90H.

90H. Regulations to give effect to Regulation 13 of Annex II

(1) The regulations may make provision for and in relation to giving effect to Regulation 13 of Annex II.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(3) Sections 37, 41 and 42 of the Interpretation Act 1984 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to regulations were references to such orders and references in those sections to an Act included a reference to regulations.

(4) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

(5) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Act and the regulations and so as not to exceed the power conferred by this Act and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(6) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this Act or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

90I. Chemical tanker construction certificates

Where, on receipt of declarations of survey in respect of a ship, the Minister is satisfied that the ship is constructed in accordance with the provisions of Annex II, he may, whether or not the ship is required by Annex II to be constructed in accordance with those provisions, issue in respect of the ship a chemical tanker construction certificate in the prescribed form attesting such compliance.

90J. Alteration, etc. of construction of ships and cancellation of certificates

(1) Where the construction of a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force is altered, or such a ship is damaged, in a manner which affects its compliance with the provisions of Annex II, the master or owner of the ship shall, within 7 days after the construction of the ship is altered or the ship is damaged, as the case may be, give a notice in writing of the alteration or damage to such person, and in such form, as are prescribed and, if the notice is not so given, the master and the owner of the ship are each guilty of an offence punishable upon conviction by a fine not exceeding —

(a) if the offender is a natural person — $1 000; or

(b) if the offender is a body corporate — $5 000.

(2) Without limiting the generality of subsection (1), a ship in respect of which a chemical tanker construction certificate is in force shall, for the purposes of that subsection, be taken to be damaged if the ship becomes unfit to proceed to sea without presenting an unreasonable threat of harm to the marine environment.

(3) Where a notice required to be given under subsection (1) is not given within the period referred to in that subsection, the following provisions of this subsection have effect —

(a) the obligation to give the notice continues, notwithstanding that that period has expired, until the notice is given;

(b) the master and the owner of the ship are each guilty of a separate and further offence in respect of each day during which the notice is not given, being a day after the expiration of that period;

(c) the penalty applicable to each such separate and further offence is a fine not exceeding —

(i) if the offender is natural person — $1 000; or

(ii) if the offender is a body corporate — $5 000.

(4) Where the Minister has reason to believe that —

(a) the report of a surveyor concerning a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force was fraudulently or erroneously made or obtained;

(b) a chemical tanker construction certificate has been issued under section 90I in respect of a ship upon false or erroneous information;

(c) the construction of a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force has been altered, or such a ship has been damaged, in a manner which affects its compliance with the provision of Annex II; or

(d) the owner of a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force has failed to comply with section 90K in respect of the ship,

he may, by instrument signed by him, cancel the certificate.

(5) Where the Minister cancels a chemical tanker construction certificate issued by him in respect of a ship, the certificate is of no force or effect after the Minister has given notice in writing of the cancellation addressed to the owner, agent or master of the ship and served in accordance with the regulations.

(6) Where a chemical tanker construction certificate issued in respect of a ship is cancelled under this section, the Minister may, by notice in writing addressed to the owner, agent or master of the ship and served in accordance with the regulations, require the certificate to be delivered up to the Minister or to such other person as the Minister specifies, and the Minister may detain the ship until the requirement is complied with.

90K. Ships to be surveyed periodically

(1) The owner of a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force shall, at least once during each period that is a prescribed period in relation to the ship for the purposes of this section, cause the ship to be surveyed for the purpose of ensuring its compliance with the provisions of Annex II.

(2) Where the owner of a ship in respect of which a chemical tanker construction certificate issued under section 90I is in force fails to comply with subsection (1) in relation to the ship and to a period that is a prescribed period in relation to the ship, the owner is guilty of an offence punishable on conviction by a fine not exceeding —

(a) if the owner is a natural person — $2 000; or

(b) if the owner is a body corporate — $10 000.

90L. Requirement for chemical tanker construction certificates

(1) Where a trading ship proceeding on an intrastate voyage is constructed or adapted so that it can carry as cargo, or part cargo, in bulk any substance that, for the purposes of Part III of the Pollution of Waters by Oil and Noxious Substances Act 1987, is a substance in Category A, B, C or D, the master of that ship shall not begin a voyage, and the owner of that ship shall not permit that ship to begin a voyage, unless there is in force in respect of that ship a chemical tanker construction certificate.

Penalty —

(a) if the offender is a natural person — $10 000, or imprisonment for 4 years, or both; or

(b) if the offender is a body corporate — $50 000.

(2) The regulations may exempt ships included in a prescribed class of ships from the application of subsection (1), either absolutely or subject to conditions.

(3) In this section chemical tanker construction certificate means —

(a) a chemical tanker construction certificate issued under section 90I;

(b) a chemical tanker construction certificate issued under section 267Q of the Navigation Act;

(c) a chemical tanker construction certificate issued under a law of another State or the Northern Territory and being a certificate of a kind prescribed as acceptable for the purposes of this Division; or

(d) an International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk issued to a foreign ship under section 267R of the Navigation Act.

(4) The owner of a ship of the kind referred to in subsection (1) in respect of which a chemical tanker construction certificate is in force shall cause the certificate to be carried on board the ship.

Penalty: $1 000.

”.
”.

4 On the date as at which this compilation was prepared, the Western Australian Marine Amendment Act 1990 s. 4(d), 6-9 and 12 had not come into operation. They read as follows:

4. Section 3 amended

Section 3 of the principal Act is amended in subsection (1) —


(d) by deleting the definition of “Manning Committee”;

”.

6. Section 12 amended

Section 12 of the principal Act is amended in paragraphs (a) and (b) by deleting “by the Manning Committee” wherever occurring.

7. Sections 15, 16, 17 and 18 repealed and section 15 inserted

Sections 15, 16, 17 and 18 of the principal Act are repealed and the following section is inserted —


15. Safety manning

(1) The chief executive officer may determine the safety manning of trading ships by determination made in accordance with the regulations in relation to a particular trading ship or in relation to a class of trading ship specified in the determination.

(2) A person or organization who or which in the opinion of the chief executive officer has a legitimate interest in the operation of the trading ship in relation to which a determination has been made under subsection (1), or, if the determination is made in respect of a class of trading vessel, a trading vessel of that class, who or which is aggrieved by the determination may request the chief executive officer to review the determination so made.

(3) For the purposes of reviewing a determination made under subsection (1) the chief executive officer may consult with any person or organization in addition to the person or organization referred to in subsection (2), who or which, in the opinion of the chief executive officer, has a legitimate interest in the operation of the trading ship the subject of the determination.

(4) Subject to any variation under section 19, a determination under this section has effect in relation to the trading ship or class of trading ship in relation to which the determination is made until varied or revoked by the chief executive officer.

”.

8. Section 19 amended

Section 19 of the principal Act is amended —

(a) by repealing subsection (1) and substituting the following subsection —


(1) Subject to subsection (3), the Minister may by instrument signed by the Minister vary a determination made by the chief executive officer under section 15 and the determination as so varied by the Minister shall thereafter be deemed to be the determination for the purposes of this Act and the regulations in relation to the trading ship or trading ships in question.

”;

and

(b) in subsection (3) —

(i) by deleting “, review or provision” and substituting the following —

“ or provision ”; and

(ii) by deleting “, review, or provision” and substituting the following —

“ or provision ”.

9. Section 20 repealed

Section 20 of the principal Act is repealed.

12. Section 65 repealed

Section 65 of the principal Act is repealed.

”.



Defined Terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined Term Provision(s)
agreement 3(1)
alleged offence 132(11)
alleged offender 132(11)
applied provisions of the Limitation Convention 76
Australian coastal and middle-water operations 3(1)
Australian fishing vessel 3(1)
Australian ship 3(1)
authorised person 66(5), 98(1), 132(11), 133(5), 134(4)
boilers and machinery 3(1)
casualty 3(1)
certificate, licence, permit, exemption or dispensation 121(2)
chief executive officer 3(1)
commercial vessel 3(1)
container 76
Container Convention 76
dangerous goods 3(1)
Department 3(1)
designated officer 132(11)
Disciplinary Appeal Tribunal 3(1)
document 125(2)
equipment 3(1)
explosives 3(1)
fishing vessel 3(1)
floating restaurant 3(1)
Government vessel 3(1)
hire and drive vessel 53
hirer 53
incompetence 3(1)
incompetent 3(1)
infringement notice 132(11)
inshore operations 3(1)
inspector 3(1)
inter-state voyage 6(4), 84(2), 90(2)
legal proceeding under this Act 127(2)
Limitation Convention 76
Manning Committee 3(1)
master 3(1)
Merchant Shipping Act 135(3)
miscellaneous equipment 45
misconduct 3(1)
Navigation Act 3(1)
officer 3(1)
official 3(1)
official logbook 47(2)
offshore operations 3(1)
overseas voyage 6(4), 84(2), 90(2)
owner 3(1), 53, 98(1)
partially smooth waters 3(1)
passenger 3(1)
passenger vessel 3(1)
person in charge of a vessel 66(5)
pleasure vessel 3(1), 98(1)
ply 3(1)
port 3(1)
Prevention of Collisions Convention 76
Protocol of 1978 relating to the Safety Convention 76
repealed Act 3(1)
restricted offshore operations 3(1)
Safety Convention 76
safety manning 3(1)
sea 76
seaman 3(1)
sheltered water passenger vessel 76
ship 3(1)
smooth waters 3(1)
special personnel 3(1)
specified 114(3)
speed measuring equipment 68(5)
surveyor 3(1)
the delegator 116(1)
the person who was in charge of the vessel 132(12), 133(5)
trading ship 3(1)
vessel 3(1)
vessel record book 47(2)
wages 3(1)
waters 66(5), 71(5)




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