Marine and Safety (Courts of Inquiry and Survey) Regulations 1997

Marine and Safety (Courts of Inquiry and Survey) Regulations 1997

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Marine and Safety Authority Act 1997 .

G. S. M. GREEN

Governor

By His Excellency's Command,

T. JOHN CLEARY

Minister for Transport

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Marine and Safety (Courts of Inquiry and Survey) Regulations 1997 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Interpretation

In these regulations –

appeal means an appeal held under Part 4 ;

approved form means a form approved by the Authority;

assessor means a person appointed under regulation 30 ;

court of inquiry means a court established under regulation 10 ;

court of survey means a court of survey established under regulation 23 ;

incident means an event defined in regulation 4 ;

inquiry means an inquiry held under Part 3 ;

investigator means a person authorised under regulation 5 to act as an investigator;

magistrate means a magistrate as defined in the Magistrates Court Act 1987 ;

notice means a notice of inquiry or notice of appeal;

officer means the master, skipper, coxswain, mate, engineer, marine engine driver, marine motor driver, engine driver or launch engine driver of a vessel;

preliminary investigation means an investigation held under Part 2 ;

Registrar means the clerk of petty sessions for a district in which a court of inquiry or court of survey is constituted.

4.   Meaning of incident

An

incident means an event that –

(a) has resulted in any of the following:

(i) the death of, or injury to, any person on board a vessel, or caused by a vessel;

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

(iii) the loss or presumed loss of a vessel;

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

(v) the grounding, sinking, flooding or capsizing of a vessel;

(vi) a vessel being disabled requiring assistance;

(vii) a vessel where a fire occurs onboard;

(viii) damage caused to a vessel or by a vessel;

(ix) loss of stability affecting the safety of a vessel; and

(x) structural failure of a vessel;

(b) as a result of which –

(i) serious damage to a vessel or structure might reasonably have occurred; or

(ii) serious damage to the environment might reasonably have occurred; or

(iii) it is reasonably suspected that the safety of a person was imperilled by the operations of a vessel.

PART 2 - Preliminary Investigation

5.   Investigators

(1)  The owner of a vessel must report to the Authority as soon as practicable by the quickest means possible if the vessel is lost, presumed lost or abandoned.

Penalty:  Fine not exceeding 10 penalty units.

(2)  The master of a vessel must report to the Authority as soon as practicable by the quickest means possible any incident occurring to the vessel.

Penalty:  Fine not exceeding 10 penalty units.

(3)  On receipt of a report under subregulation (1) or (2) or at its own discretion, the Authority is to authorise an investigator to conduct a preliminary investigation into the incident for the purposes of –

(a) identifying the circumstances in which it occurred; and

(b) determining its cause.

(4)  The Authority may appoint as an investigator –

(a) an employee of the Authority; or

(b) an employee within the meaning of the Tasmanian State Service Act 1984 ; or

(c) a person possessing suitable qualifications and experience in a field relevant to the investigation.

(5)  Before an incident is investigated, the investigator must notify in writing every person whom the investigator reasonably believes to be the master or the owner, or agent representing the owner of any vessel the investigator reasonably believes was involved in the incident to be investigated.

(6)  In investigating an incident, an investigator –

(a) is not bound to act formally; and

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

(c) may inform himself or herself on any matter in any way he or she thinks fit; and

(d) may make a record of evidence given by a person.

(7)  Any costs reasonably incurred in the conduct of a preliminary investigation is recoverable from the person whose default or neglect caused or contributed to the incident in a court of competent jurisdiction as a debt to the Authority.

(8)  If the Authority determines that a further inquiry into an incident is necessary, it is to request the Minister to establish a court of inquiry under regulation 10 .

6.   Powers of investigators

(1)  For the purposes of conducting an investigation, an investigator may, at any reasonable time of the day or night, with any assistance necessary and reasonable –

(a) board any vessel to inspect it or any object on it; and

(b) enter any premises to inspect any object relating to a vessel; and

(c) inspect any record found on the vessel or premises; and

(d) take copies of, and make extracts from, any record found on the vessel or premises; and

(e) require any person on the vessel or on the premises to make available any record kept on the vessel or premises, to provide information and to answer questions.

(2)  The powers of an investigator under subregulation (1) may only be exercised –

(a) after obtaining the consent of the person who appears to be the master or person in charge of the vessel; or

(b) without consent board a vessel if he or she reasonably believes that circumstances of seriousness and urgency exist because –

(i) the vessel will leave a port or the territorial sea of Tasmania before consent or a warrant can be obtained; or

(ii) evidence of the cause of an incident, or the circumstances in which an incident occurred, that is on the vessel will be removed, destroyed or interfered with before consent or a warrant can be obtained.

(3)  Before obtaining the consent of a person, the investigator must inform the person that he or she may refuse to give consent.

(4)  If the investigator obtains the consent of a person, the investigator must ask the person to sign a written acknowledgment –

(a) of the fact that the person has been informed that he or she may refuse to give consent; and

(b) of the fact that the person has voluntarily given consent; and

(c) of the day on which, and the time at which, the person gave consent.

(5)  If the investigator boards a vessel or premises, the investigator is not authorised to remain there if he or she fails to produce a letter of authority issued by the Authority.

7.   Confidentiality

(1)  If an investigator makes a record of evidence under regulation 5(4) , the investigator must not divulge that record, in whole or in part, except in the performance of duties or in the exercise of powers under these regulations, to any person other than –

(a) the person who provided that evidence; or

(b) a court of inquiry established to inquire into the incident to which the evidence relates; or

(c) the Chief Executive Officer; or

(d) the Authority.

(2)  A person to whom a record of evidence is divulged under subregulation (1) and any person under the control of that person is subject to the same rights and obligations under that subregulation as if the person were the investigator.

8.   Reports

(1)  An investigator, at any time during an investigation, may prepare a report concerning the incident being investigated and give it to the Chief Executive Officer.

(2)  After an investigation has been completed, the investigator must prepare a report, setting out the results of the investigation.

(3)  If a report, or part of a report, relates to a person's affairs to a material extent, the investigator must, if it is reasonable to do so, give the person a copy of the report or of the relevant part of the report.

(4)  A person referred to in subregulation (3) , within 28 days of receiving the report, may provide written comments or information relating to the report.

(5)  As soon as practicable after the completion of the period referred to in subregulation (4) , the investigator –

(a) may amend the report as a result of the comments or information provided under subregulation (4) ; and

(b) must give a copy of the final report to the Authority.

(6)  The Authority may cause the whole or part of a report prepared under this regulation to be printed and published.

9.   Termination of investigation

An investigation ends –

(a) when the investigator gives the Authority a report under regulation 8(5) ; or

(b) if the Minister appoints a court of inquiry to inquire into the incident; or

(c) if the Minister or the Authority directs the investigator to end it.

PART 3 - Court of Inquiry

10.   Establishment of court of inquiry

(1)  The Minister may establish a court to inquire into an incident.

(2)  A court of inquiry consists of 3 persons appointed by the Minister of whom –

(a) one is a magistrate who is the chairperson; and

(b) 2 are assessors with nautical engineering or special skills chosen from a list of assessors recommended by the Authority.

11.   Appearance before court

(1)  A person may appear at an inquiry if the court is satisfied that the person has an interest in the inquiry.

(2)  A person without an interest in an inquiry may appear before a court of inquiry by leave of that court.

12.   Parties to proceedings

The following are parties to proceedings before a court of inquiry:

(a) a person on whom a notice is served under regulation 13 ;

(b) a person who appears before the court;

(c) the Authority.

13.   Notice of inquiry

(1)  If a court of inquiry is established, the Registrar is to serve or cause to be served a notice of inquiry in an approved form on –

(a) any person likely to be affected by the inquiry; and

(b) any other person the court of inquiry may direct.

(2)  A notice of inquiry is to specify –

(a) the date, place and time of the hearing of the inquiry; and

(b) the matters to be raised at that hearing; and

(c) the questions intended to be asked at that hearing.

(3)  The Registrar, if directed by the Authority, may amend the notice of inquiry before or during the hearing of the inquiry by adding to, or omitting, any question specified in that notice.

14.   Inquiry in absence of parties

A court of inquiry may proceed with the inquiry at the time and place fixed for the hearing whether or not all the parties are present.

15.   Adjournment of inquiry

A court of inquiry may adjourn an inquiry for any reason and during any period it considers appropriate.

16.   Inspection

A court of inquiry may –

(a) survey and inspect any vessel to which the inquiry relates; and

(b) inspect any machinery and equipment of that vessel.

17.   Investigator to give information to court

If an investigator has investigated an incident in relation to which a court of inquiry has been established, the investigator, as soon as practicable, is to provide to the court –

(a) all the information the investigator has obtained concerning the incident; and

(b) copies of all reports that the investigator has prepared under regulation 8 .

18.   Procedure of court of inquiry

(1)  A court of inquiry is open to the public.

(2)  Section 8 and Part 3 of the Commissions of Inquiry Act 1995 apply to a court of inquiry as if –

(a) the court were a Commission established under that Act; and

(b) the inquiry were conducted by that Commission.

(3)  A court of inquiry may regulate the procedures of an inquiry as it considers appropriate.

19.   Certificates and licences

A person whose conduct is being inquired into must deposit any relevant certificate or licence held by the person –

(a) with the Authority if required to do so by the Authority; or

(b) with the court of inquiry, if not so required.

Penalty:  Fine not exceeding 5 penalty units.

20.   Orders of court of inquiry

(1)  A court of inquiry may order that –

(a) a certificate or licence –

(i) be cancelled; or

(ii) be suspended for a specified period; or

(b) a certificate be replaced with a certificate of a lower grade.

(2)  A court of inquiry may order that a vessel –

(a) be detained for a specified period; or

(b) be released from detention.

21.   Finding or decision of court

(1)  A finding or decision of any 2 members of a court of inquiry is the finding or decision of the court of inquiry.

(2)  The finding or decision of a court of inquiry is final.

(3)  Every member of a court of inquiry is to sign the finding or decision of the court as concurring or dissenting.

(4)  Any assessor assisting a court of inquiry is to sign the finding or decision of the court as concurring or dissenting.

22.   Report of finding or decision

(1)  A court of inquiry is to forward to the Minister –

(a) a report of its finding or decision; and

(b) the evidence and reasons for that finding or decision; and

(c) any observations in relation to the inquiry or its finding or decision.

(2)  The Minister is to cause the finding or decision of a court of inquiry to be published in the Gazette.

PART 4 - Court of Survey

23.   Court of survey

(1)  The Minister may establish a court of survey to inquire into any matter specified in regulation 24 .

(2)  A court of survey consists of 3 persons appointed by the Minister of whom –

(a) one is a magistrate who is the chairperson; and

(b) 2 are assessors with nautical emergency or special skills chosen from a list of assessors recommended by the Authority.

24.   Appeals

(1)  A person may appeal to a court of survey in respect of any of the following:

(a) the manning of vessels;

(b) the conduct of an officer;

(c) a matter under the Marine and Safety (Collision) Regulations 1997 ;

(d) the refusal to issue a certificate of survey;

(e) the cancellation, suspension, revocation or alteration of a certificate of survey;

(f) the cancellation or suspension of a certificate of competency or licence.

(2)  An appeal is to be –

(a) in an approved form; and

(b) lodged with the Registrar.

25.   Notice of hearing of appeal

(1)  On receipt of a notice of appeal, the Registrar is to serve or cause to be served a notice in the approved form of the date, place and time of the hearing of the appeal on –

(a) the Authority; and

(b) the appellant; and

(c) any other person the Registrar considers appropriate.

(2)  On receipt of the notice, the Authority is to forward to the Registrar –

(a) a copy of any relevant reports; and

(b) a copy of any other relevant document.

26.   Parties to appeal

The following are parties to proceedings before a court of survey:

(a) the Authority;

(b) the appellant.

27.   Application of Part 2

The provisions of regulations 16 , 18 , 20(2) , 21(1) , 21(2) and 22(1) apply to a court of survey as if it were a court of inquiry.

28.   Procedure of court of survey

A court of survey may regulate the procedures of an appeal as it considers appropriate.

29.   Orders of court of survey

A court of survey may order that –

(a) a certificate of survey be issued or refused; or

(b) a certificate of competency or licence be cancelled or suspended; or

(c) a direction be carried out or waived.

PART 5 - Assessors

30.   Appointment

(1)  The Minister may appoint a person as an assessor for the purpose of assisting a court of inquiry or court of survey.

(2)  Assessors are to be appointed from a list of persons kept by the Authority who possess the qualifications specified in regulation 31 .

(3)  A person appointed as an assessor holds office for any period the Minister determines.

(4)  An assessor is to be classified as follows:

(a) Class 1 (mercantile marine masters) for a person of nautical skill and possessing the qualifications specified in regulation 31(1) ;

(b) Class 2 (mercantile marine engineers) for a person of engineering skill and possessing the qualifications specified in regulation 31(2) ;

(c) Class 3 for a person of special skill or experience and possessing the qualifications specified in regulation 31(3) .

31.   Qualifications

(1)  A person appointed as an assessor Class 1 must possess –

(a) while holding a certificate of competency as master of a foreign-going vessel, not less than 5 years' service as master of a vessel at least 2 years of which as master of a seagoing vessel of not less than 1000 gross tonnage; or

(b) qualifications and experience that, in the opinion of the Authority, are substantially equivalent to those referred to in paragraph (a) .

(2)  A person appointed as an assessor Class 2 must possess –

(a) while holding a certificate of competency as a first-class engineer, not less than 5 years' service as an engineer in seagoing vessels, at least 2 years of which as chief engineer; or

(b) qualifications and experience that, in the opinion of the Authority, are substantially equivalent to those referred to in paragraph (a) .

(3)  A person appointed as an assessor Class 3 must possess any qualifications the Authority considers necessary.

32.   Acting as assessor

(1)  An assessor must not act as an assessor in any proceedings before a court of inquiry or a court of survey if the assessor –

(a) has acted in the capacity of surveyor of the vessel to which the proceedings relate; or

(b) is retained as the surveyor of a person who is a party to the proceedings; or

(c) has any pecuniary interest in the subject matter of the proceedings; or

(d) has a bias in favour of or against a party to the proceedings.

Penalty:  Fine not exceeding 5 penalty units.

(2)  Proceedings before a court of inquiry or a court of survey are not invalid or ineffectual by reason only of the fact that an assessor has acted in contravention of subregulation (1) .

33.   Allowances

An assessor is entitled to any remuneration, allowances and expenses the Minister determines.

PART 6 - Miscellaneous

34.   Duties of Registrar

A Registrar –

(a) is to sign, seal and issue every process of a court of inquiry or court of survey; and

(b) has the custody of every record, minute and proceeding of such a court; and

(c) is to keep a minute book in an approved form to record the findings, decisions and orders of such a court.

35.   Representation

A party to, or a person appearing at, any proceedings may –

(a) appear personally; or

(b) be represented by another person appointed by the party or person in that behalf.

36.   Subpoena

A Registrar may issue a subpoena in an inquiry or appeal –

(a) summoning a witness to give evidence; and

(b) summoning a witness to produce documents.

37.   Production of document

(1)  A party may give to another party to proceedings before a court of inquiry or court of survey notice in writing –

(a) to produce any document relating to the subject matter of the proceedings that are in the possession or under the control of the other party; or

(b) to admit any documents.

(2)  If a notice under subregulation (1) is not complied with, the party who gave the notice may give secondary evidence of the contents of any document to which the notice relates.

38.   Service in absence of person

If any notice or other document is to be served on a person in relation to an inquiry or appeal in respect of the incompetency or misconduct of the person and the person is absent from this State or cannot be found, the Registrar may –

(a) place a copy of the notice or document in an envelope addressed to the person and send it and a notification of its contents to the owner of the appropriate vessel with a request that it be forwarded to the person; or

(b) if the owner cannot be found, notify, by notice in the Gazette or in a daily newspaper circulating in the State, that the notice or document is thereby taken to be served on the person.

39.   Allowances

Any person who appears before a court of inquiry or court of survey is entitled to be paid any fees, allowances and expenses the Minister determines.

40.   Rescission

The regulations specified in Schedule 1 are rescinded.

SCHEDULE 1 - Rescission of Regulations

Regulation 40

1.    Marine (Courts of Inquiry and Survey) Regulations 1966 (Statutory Rules 1982, No. 249)

2.    Marine (Courts of Inquiry and Survey) Amendment Regulations 1967 (Statutory Rules 1967, No. 99)

3.    Marine (Courts of Inquiry and Survey) Amendment Regulations 1975 (Statutory Rules 1975, No. 44)

4.    Marine (Courts of Inquiry and Survey) Amendment Regulations 1982 (Statutory Rules 1982, No. 125)

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 24 December 1997

These regulations are administered in the Department of Transport.

EXPLANATORY NOTE

(This note is not part of the regulation)

(a) provide for the authorisation of an investigator to carry out a preliminary investigation of an incident; and

(b) establish a court of inquiry to inquire into incidents; and

(c) establish a court of survey to hear appeals against certain matters; and

(d) provide for the appointment of assessors for the purpose of those courts.