Marine and Safety (Maritime Incidents) Regulations 2007

Marine and Safety (Maritime Incidents) Regulations 2007

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 .

19 November 2007

W. J. E. COX

Governor

By His Excellency's Command,

J. G. COX

Minister for Infrastructure

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Marine and Safety (Maritime Incidents) Regulations 2007 .

2.   Commencement

These regulations take effect on 24 December 2007.

3.   Interpretation

In these regulations –

Act means the Marine and Safety Authority Act 1997 ;

approved means approved by MAST;

assessor means a person who is authorised under regulation 29 to assist a court of inquiry;

inquiry means an inquiry under Part 4 ;

investigation means an investigation under Part 3 ;

investigator means a person who is authorised under regulation 8 to carry out an investigation;

magistrate means a magistrate within the meaning of the Magistrates Court Act 1987 ;

maritime incident – see regulation 4 ;

MAST means the Authority;

Registrar means the district registrar in respect of the district registry of the Magistrates Court in which a court of inquiry is constituted;

serious injury means any injury other than –

(a) an injury, such as a scratch or graze, that is merely superficial; or

(b) an injury that, though more than superficial, is one for which a reasonably healthy and robust person would not ordinarily seek or require medical attention of any kind or medical attention beyond very basic and immediate first aid.

4.   Meaning of "maritime incident"

(1)  For the purposes of these regulations, a maritime incident is –

(a) the occurrence in navigable waters of any of the following:

(i) the death or serious injury of a person on board a vessel;

(ii) the death or serious injury of a person caused by a vessel;

(iii) the loss overboard or presumed loss overboard of a person from a vessel;

(iv) the loss or presumed loss of a vessel (whether from sinking, structural failure, explosion or fire or otherwise);

(v) the abandonment of a vessel;

(vi) the theft, hijacking or suspicious disappearance of a vessel; or

(b) the occurrence in navigable waters of any of the following to a serious degree:

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

(ii) the grounding or stranding of a vessel;

(iii) the flooding or swamping of a vessel;

(iv) the capsizing or complete roll-over of a vessel;

(v) a loss of stability affecting the safety of a vessel (whether from shifting cargo or ballast or other causes);

(vi) a loss of steerage or propulsion on a vessel;

(vii) the disablement of a vessel to such extent that it requires assistance;

(viii) a structural failure in the hull or superstructure of a vessel;

(ix) damage caused to or by a vessel;

(x) a fire, explosion or dangerous substances emergency on a vessel;

(xi) the loss overboard of a shipping container or other major item or quantity of cargo from a commercial vessel;

(xii) the loss overboard of spars, rigging or other major items of equipment from a sailing vessel;

(xiii) the loss overboard of nets, dredges, cables or other major items of equipment from a commercial fishing vessel.

(2)  For the purposes of subregulation (1) , it is immaterial whether the relevant vessel is underway or secured at the time of the relevant occurrence.

(3)  In this regulation –

secured, for a vessel, means –

(a) riding at anchor (other than a sea anchor); or

(b) tied up to a mooring, or to a moored raft or moored pontoon; or

(c) tied up to a jetty, wharf or breakwater; or

(d) berthed in a marina; or

(e) secured to a vessel to which paragraph (a) , (b) , (c) or (d) applies; or

(f) connected up to something such as a crane, slipway cradle or trailer winch in order to be put into or taken out of the water;

serious degree means to such degree that –

(a) a navigation hazard is or is realistically likely to be created; or

(b) a vessel sustains or is realistically in danger of sustaining damage that is not merely superficial; or

(c) the environment sustains or is realistically in danger of sustaining serious harm; or

(d) the safety of any person is at serious risk.

5.   Suspected maritime incidents

For the purposes of these regulations, the power of any person to investigate maritime incidents extends to suspected maritime incidents.

PART 2 - Reporting of Maritime Incidents

6.   Masters, &c., to report maritime incidents

(1)  The master of a vessel must report to MAST by the quickest practicable means if a maritime incident occurs in respect of the vessel.

Penalty:  Fine not exceeding 20 penalty units.

(2)  The owner of a vessel must report to MAST by the quickest practicable means if the vessel is lost, presumed lost or abandoned.

Penalty:  Fine not exceeding 20 penalty units.

PART 3 - Investigation of Maritime Incidents

7.   MAST may investigate maritime incidents

(1)  MAST may investigate any maritime incident reported to it under Part 2 .

(2)  MAST may also investigate a maritime incident on its own motion.

(3)  In deciding whether to investigate a maritime incident, MAST is to have regard to –

(a) its statutory functions; and

(b) the apparent nature and seriousness of the maritime incident; and

(c) whether appropriate and adequate investigative action has been, is being or is likely to be taken in respect of the maritime incident by another Agency of the State or an Agency of the Commonwealth; and

(d) any interest that MAST's counterparts in other jurisdictions may have in the matter; and

(e) whether any civil, coronial or criminal proceedings have been instituted in the matter; and

(f) any other matters it considers relevant.

8.   Authorisation of investigators

(1)  If it exercises its power under regulation 7(1) and (2) , MAST is to authorise a person to investigate the maritime incident so as to establish –

(a) the circumstances in which it occurred; and

(b) its cause.

(2)  The investigator may be –

(a) a person employed or engaged under section 19 of the Act; or

(b) (if the Head of the relevant State Service Agency agrees) a State Service officer or State Service employee; or

(c) a person with relevant expertise.

(3)  If subregulation (2)(b) applies, the investigator may perform that role in conjunction with State Service employment.

(4)  For the purposes of the investigation MAST is to furnish the investigator with a letter of authority in an approved form.

(5)  An authorisation under this regulation may be revoked by MAST for reasonable cause at any time.

9.   Preliminary notice of investigation

Before investigating a maritime incident, an investigator, by written notice, is to alert or make a reasonable attempt to alert the following persons of the investigation:

(a) the master of each vessel known or believed by MAST to have been involved in the maritime incident;

(b) the owner of each vessel known or believed by MAST to have been involved in the maritime incident, or such owner's agent.

10.   General conduct of investigations

In investigating a maritime 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.

11.   Confidentiality of evidence

(1)  An investigator who makes a record of evidence under regulation 10(d) must not, except as may be necessary to exercise a power or perform a duty under these regulations, divulge that record or any part of it to any person other than –

(a) the person who provided the evidence; or

(b) a court of inquiry; or

(c) the chief executive officer; or

(d) MAST.

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

12.   Powers of investigators

(1)  An investigator who is investigating a maritime incident may, on production of his or her letter of authority –

(a) board and inspect any vessel that he or she has reasonable grounds to believe was or may have been involved in the maritime incident; and

(b) enter and inspect any premises where he or she has reasonable grounds to believe there is or may be evidentiary material relating to the investigation.

(2)  The power under subregulation (1) may be exercised –

(a) at any reasonable time of the day or night; and

(b) using such personal and material assistance as the investigator reasonably considers necessary.

(3)  However, the power under subregulation (1) may only be exercised by consent unless, in the case of a vessel, the investigator reasonably believes that serious and urgent circumstances exist because the evidentiary material in question is or may be of key importance to the investigation and –

(a) the vessel is likely to leave the State before a consent can be obtained; or

(b) the evidentiary material is in danger of being removed, destroyed or interfered with before a consent can be obtained.

(4)  Before seeking a consent under and for this regulation, an investigator must inform the person concerned that he or she may refuse to give that consent.

(5)  An investigator who obtains a consent under and for this regulation must ask the person giving that consent to sign a written acknowledgment specifying –

(a) that it was given voluntarily; and

(b) that the person was informed that he or she could refuse to give it; and

(c) the time and day it was given.

(6)  The power of inspection referred to in subregulation (1) authorises an investigator to –

(a) inspect any object or document found on the vessel or premises; and

(b) take copies of and make extracts from any document found on the vessel or premises; and

(c) take measurements; and

(d) make notes and sketches; and

(e) take photographs and make video and audio recordings; and

(f) take samples of substance away for analysis; and

(g) require a person on the vessel or premises to provide a demonstration, furnish information or answer questions; and

(h) require a person on the vessel or premises to open and, if necessary, unlock any –

(i) door, gate, hatch, bulkhead or other kind of barrier; or

(ii) locker, hold or other kind of container; and

(i) require a person on the vessel or premises to undo and, if necessary, move any tarpaulin, sheeting or other covering.

(7)  Nothing in this regulation authorises an investigator to use physical force in respect of any person or object.

(8)  In this regulation –

consent means the consent of a responsible person;

responsible person means –

(a) in the case of a vessel, the owner or master; and

(b) in the case of premises, the owner or occupier.

13.   Offence to obstruct, &., investigators

(1)  A person must not –

(a) obstruct or hinder; or

(b) threaten; or

(c) attempt to intimidate; or

(d) attempt to improperly influence –

an investigator who is carrying out an investigation.

Penalty:  Fine not exceeding 20 penalty units.

(2)  For the avoidance of doubt, the withholding of a consent under regulation 12 does not constitute obstruction or hindrance of an investigation.

14.   Investigation reports

(1)  An investigator may give MAST an interim report at any time during an investigation if –

(a) MAST requests such a report; or

(b) the investigator considers that urgent or special circumstances make the preparation of such a report necessary or advisable.

(2)  As soon as practicable after an investigation into a maritime incident has been concluded, the investigator is to –

(a) prepare a report setting out the results of the investigation; and

(b) subject to subregulation (3) , give the report to MAST.

(3)  If the report prepared under subregulation (2) relates to a person's affairs to a material extent –

(a) the investigator is to give the person a copy of the report; and

(b) within 30 days after being given that copy, the person may give the investigator written information or comments on the report; and

(c) the investigator, in his or her discretion, may amend the report consequent on the receipt of any such information or comments.

(4)  MAST may cause a report prepared under this regulation to be printed and published in such ways as it considers appropriate.

(5)  In this regulation –

report includes a part of a report.

15.   Conclusion of investigations

An investigation into a maritime incident is taken to have concluded once –

(a) MAST has received a report under regulation 14(2) ; or

(b) the Minister has appointed a court of inquiry to inquire into the maritime incident; or

(c) the Minister or MAST directs the investigator to conclude the investigation.

16.   MAST may recommend court of inquiry

If MAST decides that any maritime incident it has investigated requires further inquiry, it is to recommend to the Minister that a court of inquiry be established.

PART 4 - Courts of Inquiry

17.   Establishment of courts of inquiry

(1)  The Minister may establish a court of inquiry to inquire into a maritime incident.

(2)  The power under subregulation (1) may be exercised –

(a) on the Minister's own motion; or

(b) following a recommendation under regulation 16 .

(3)  The court of inquiry is to consist of 3 persons appointed by the Minister as follows:

(a) a magistrate;

(b) 2 persons who, in the Minister's opinion, have expertise relevant to the subject of the inquiry.

(4)  The magistrate is the chairperson of the court of inquiry.

18.   Appearances before courts of inquiry

(1)  Any person may appear before a court of inquiry if the court is satisfied that the person has an interest in the subject of the inquiry.

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

19.   Parties to proceedings

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

(a) a person on whom a notice of inquiry is served under regulation 20 ;

(b) a person who appears before the court;

(c) MAST.

20.   Notice of inquiries

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

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

(b) such other persons as the court may direct.

(2)  A notice of inquiry is to be in an approved form and specify at least –

(a) the subject of the inquiry; and

(b) the time and place of the hearing of the inquiry; and

(c) the matter or matters to be raised at the hearing.

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

21.   Inquiries in absence of parties

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

22.   Adjournment of inquiries

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

23.   Inspections

A court of inquiry may –

(a) survey and inspect any vessel relevant to its inquiry; and

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

24.   Investigators to give information to courts

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

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

(b) copies of all reports prepared under regulation 14 .

25.   Procedure of courts of inquiry

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

(2)  Sections 8 and 33 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)  Except as provided by these regulations, a court of inquiry may regulate its own proceedings.

26.   Orders of courts of inquiry

(1)  If it considers it appropriate to do so having regard to its finding or decision, a court of inquiry may make any or any combination of the following orders:

(a) that a local marine authority be cancelled;

(b) that a local marine authority be suspended for a specified time;

(c) that a local marine authority be replaced with a local marine authority of a lower grade;

(d) that a vessel be detained for a specified period;

(e) that a vessel be released from detention;

(f) that, on an application by or on behalf of MAST, a person pay all or any part of the costs reasonably incurred by MAST in investigating the maritime incident under inquiry.

(2)  An amount ordered to be paid to MAST under subregulation (1)(f) is recoverable in a court of competent jurisdiction as a debt due to MAST.

(3)  In this regulation –

local marine authority means a certificate, licence or permit issued under the authority of the Act.

27.   Findings or decisions of courts of inquiry

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

28.   Reports of findings or decisions

(1)  A court of inquiry is to give 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 relating to the inquiry or its finding or decision.

(2)  The Minister is to cause the finding or decision to be published in the Gazette and such other ways, if any, as the Minister considers appropriate.

(3)  Without limiting subregulation (2) , the Minister may refer the finding or decision to –

(a) any Minister, Authority or Agency of the Commonwealth or of any State or Territory; or

(b) any international maritime organisation.

PART 5 - Assessors

29.   Authorisation of assessors

(1)  The Minister may authorise a person to act as an assessor to assist a court of inquiry.

(2)  The assessor may be –

(a) a person employed or engaged under section 19 of the Act; or

(b) (if the Head of the relevant State Service Agency agrees) a State Service officer or State Service employee; or

(c) a person with relevant expertise.

(3)  If subregulation (2)(b) applies, the assessor may perform that role in conjunction with State Service employment.

(4)  In the performance of his or her functions, the assessor is subject to the direction and control of the court of inquiry.

(5)  An authorisation under this regulation may be revoked by the Minister for reasonable cause at any time.

30.   Restrictions on assessors

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

(a) has acted in the capacity of marine surveyor of a vessel relevant to the inquiry; or

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

(c) has a pecuniary interest in any subject matter of the proceedings.

Penalty:  Fine not exceeding 10 penalty units.

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

PART 6 - Miscellaneous

31.   Duties of Registrars

The Registrar –

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

32.   Representation

A party to, or a person appearing at, any proceedings before a court of inquiry may –

(a) appear personally; or

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

33.   Subpoenas

The Registrar may issue a subpoena in an inquiry –

(a) summoning a witness to give evidence; and

(b) summoning a witness to produce documents.

34.   Production of documents

(1)  A party to any proceedings before a court of inquiry may give another party to those proceedings a 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 that other party; or

(b) to admit any documents.

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

35.   Service in absence of person

If a notice or other document is to be served on a person in relation to an inquiry in respect of the incompetence or misconduct of the person and the person is absent from the 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.

36.   General allowances

A person who appears in any proceedings before a court of inquiry is entitled to be paid such fees, allowances and expenses as the Minister determines.

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

Notified in the Gazette on 28 November 2007

These regulations are administered in the Department of Infrastructure, Energy and Resources.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations, which are made consequentially on the repeal of the Marine and Safety (Courts of Inquiry and Survey) Regulations 1997 under section 11 of the Subordinate Legislation Act 1992 , make provision for and in relation to –

(a) the reporting and preliminary investigation of maritime incidents; and

(b) the establishment and working of courts of inquiry to inquire into maritime incidents.