Table of provisions Section Page Part 1—Preliminary 4
S. 83 amended by No. 77/2001 s. 11(1)(a)(2) (ILA s. 39B(1))
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S. 83 amended by No. 77/2001 s. 11(1)(a)(2) (ILA s. 39B(1)). s. 83 (1) An inspector may, for the purposes of conducting an investigation under section 82D— (a) without unnecessarily delaying the vessel, go on board and inspect any vessel and its equipment; and S. 83(1)(aa) inserted by No. 77/2001 s. 11(1)(b). (aa) if it is necessary to do so to enable the inspector to board or leave a vessel, direct the master of the vessel or the person operating the vessel— (i) to stop the vessel; or (ii) to manoeuvre the vessel in a specified manner or to a specified place; or (iii) to secure the vessel in a specified manner; and S. 83(1)(ab) inserted by No. 77/2001 s. 11(1)(b). (ab) detain a vessel for so long as is necessary for the purposes of the investigation, up to a maximum period of 48 hours; and S. 83(1)(ac) inserted by No. 77/2001 s. 11(1)(b). (ac) if authorised to do so under section 83D, detain a vessel for the period authorised under that section; and S. 83(1)(ad) inserted by No. 77/2001 s. 11(1)(b). (ad) direct the master or owner of a vessel or the person operating a vessel to do anything necessary to enable the effective and safe detention of the vessel; and S. 83(1)(b) amended by Nos 57/1989 s. 3(Sch. item 126.9), 28/1999 s. 7(2). (b) in accordance with a search warrant issued by a magistrate, enter and inspect any premises; and S. 83(1)(c) inserted by No. 28/1999 s. 7(2), amended by No. 10/2006 s. 5. (c) request a person to give any information or require a person to produce any document. S. 83(2) inserted by No. 77/2001 s. 11(2). s. 83 (2) An inspector may enter any land for the purpose of boarding a vessel (other than land used for residential purposes). S. 83(3) inserted by No. 77/2001 s. 11(2). (3) An inspector may do all or any of the following on any vessel boarded under subsection (1)— (a) search and inspect the vessel; (b) inspect any thing on the vessel; (c) make copies of, or take extracts from, any document; (d) seize any thing on the vessel if the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction; (e) test any equipment or substance on the vessel; (f) take samples of any substance; (g) take measurements; (h) take any photographs or make any audio, visual or other recordings that he or she considers necessary; (i) use any assistants or equipment the inspector considers necessary to exercise the powers conferred by this section. S. 83A inserted by No. 28/1999 s. 8. 83A Offence to fail to comply with request of inspector s. 83A (1) A person must not— S. 83A(1)(a) amended by No. 77/2001 s. 12(a). (a) without reasonable excuse, refuse or fail to comply with a request or requirement made by an inspector in the course of conducting an investigation under section 82D; or S. 83A(1)(b) amended by No. 77/2001 s. 12(b). (b) give information to an inspector under section 83 that the person knows to be false or misleading in a material particular; or S. 83A(1)(c) inserted by No. 77/2001 s. 12(c). (c) obstruct, hinder, impede or oppose an inspector who is exercising a power given to the inspector by or under this Act, or induce or attempt to induce any other person to do so; or S. 83A(1)(d) inserted by No. 77/2001 s. 12(c). (d) prevent, or attempt to prevent, any other person from assisting an inspector.
(2) It is a reasonable excuse for a natural person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under section 83 if the giving of the information, the production of the document or the doing of that other thing would tend to incriminate the person. S. 83B inserted by No. 77/2001 s. 13. 83B Requirement to give name and address (1) This section applies if an inspector believes on reasonable grounds that a person has committed an offence against this Act or the regulations. (2) The inspector may ask the person to state his or her name and ordinary place of residence or business. (3) In making the request, the inspector must inform the person of the grounds for his or her belief that the person has committed an offence. (4) A person who, in response to the request— (a) refuses or fails to comply with the request without a reasonable excuse for not doing so; or (b) states a name that is false in a material particular; or (c) states an address other than the full and correct address of his or her ordinary place of residence or business— is guilty of an offence and liable to a penalty not exceeding 5 penalty units.
s. 83C (5) If a person states a name and address in response to a request made under subsection (2) and the inspector suspects on reasonable grounds that the stated name or address may be false, the inspector may request the person to produce evidence of the correctness of the name and address. (6) The person must comply with the request, unless he or she has a reasonable excuse for not doing so.
(7) It is not an offence for a person to fail to comply with a request made under subsection (2) or (5) if the inspector did not inform the person, at the time the request was made, that it is an offence to fail to comply with the request. S. 83C inserted by No. 77/2001 s. 13. 83C Identity of vessel owner or master must be disclosed (1) This section applies if an inspector— (a) needs to establish the identity or location of the owner or master of a vessel for the purposes of an investigation; and (b) asks a person whom the inspector believes has information concerning that identity or location to disclose that information. (2) The person must give the inspector all the information the person has regarding the identity and location of the owner and master of the vessel.
(3) It is not an offence for a person to fail to comply with subsection (2) if the inspector did not inform the person, at the time the request for the information was made, that it is an offence to fail to comply with the request. S. 83D inserted by No. 77/2001 s. 13. 83D Extension of detention time s. 83D (1) An inspector may apply to a magistrate for an order extending the period for which a vessel may be detained. (2) The magistrate may make the order if he or she is satisfied that there is reasonable cause to do so. (3) In making an order, the magistrate must specify the period for which the extension applies. 84 Investigations S. 84(1) amended by No. 77/2001 s. 14(1). (1) The Director may conduct an investigation if the Director has reason to believe— (a) that a vessel has been involved in an accident; or S. 84(1)(ab) inserted by No. 20/1993 s. 22(1). (ab) that a vessel has been involved in an incident tending to the loss or destruction of, or damage to, any vessel or other property or tending to endanger any person; or S. 84(1)(b) amended by Nos 82/1995 s. 169(3), 28/1999 s. 9(1), 9/2004 s. 12(1)(a). s. 84 (b) that any pilot, pilot exempt master, harbour master, pilotage services provider or person holding a certificate of competency or service under this Act has acted incompetently in the course of his or her duties or in breach of this Act or the regulations; or S. 84(1)(c) inserted by No. 9/2004 s. 12(1)(b). (c) that the holder of any harbour master licence has breached the conditions of that licence; or S. 84(1)(d) inserted by No. 9/2004 s. 12(1)(b). (d) that any pilot, pilot exempt master or pilotage service provider, who is registered under this Act to act as a pilot, pilot exempt master or pilotage service provider (as the case requires), has breached the conditions of that registration. S. 84(1A) inserted by No. 28/1999 s. 9(2), amended by No. 77/2001 s. 31(1)(b). (1A) The Director, for the purposes of conducting an investigation, may require— (a) a vessel to remain in port waters for a period not exceeding 24 hours; and S. 84(1A)(b) amended by No. 77/2001 s. 31(1)(b). (b) a person to give written or oral information to the Director; and S. 84(1A)(c) amended by No. 77/2001 s. 31(1)(b). (c) a person to produce to the Director any documents relevant to the investigation. S. 84(1B) inserted by No. 28/1999 s. 9(2), amended by No. 77/2001 s. 31(1)(b). (1B) If the Director commences an investigation under this section, the Director— S. 84(1B)(a) amended by No. 77/2001 s. 14(2). (a) may suspend a licence or certificate issued or registration granted under this Act for a period not exceeding 14 days; and (b) must notify the person holding the licence or certificate or registered under this Act that the licence, certificate or registration has been suspended for the period specified in the notice. S. 84(2) amended by Nos 28/1999 s. 9(3), 9/2004 s. 12(2). (2) An investigation must be conducted in such a manner that any person against whom an allegation of incompetence or breach of this Act or the regulations or a condition of a licence granted under this Act is made is given an opportunity of making a defence and showing why his or her certificate, licence or registration should not be cancelled or suspended. S. 84(3) amended by Nos 20/1993 s. 22(2), 77/2001 s. 31(1)(b), 69/2009 s. 54(Sch. Pt 2 item 34). (3) In conducting an investigation the Director has the powers conferred by sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 on a board appointed by the Governor in Council. S. 84A inserted by No. 77/2001 s. 15. s. 84A 84A Extension of suspension pending investigation (1) The Victorian Civil and Administrative Tribunal may extend the period of a suspension imposed— (a) by the Director under section 84(1B); or (b) by the Tribunal under this section.
(a) on the application of the Director; and (b) if it is satisfied that there is reasonable cause to do so. (3) In extending a period of suspension, the Tribunal must specify the period for which the extension applies. S. 84B inserted by No. 77/2001 s. 15. s. 84B 84B Action by the Director following investigation (1) On the completion of an investigation under section 84, the Director may, in relation to any person who was given an opportunity to make a defence under that section— (a) take no action; (b) reprimand the person; (c) take action under section 85 to cancel or suspend any certificate, licence or registration held by the person under this Act; (d) impose or vary conditions on any certificate, licence or registration held by the person under this Act; (e) replace any certificate, licence or registration cancelled under section 85 with an authority of a lesser nature; (f) inform any other marine safety authority that has granted a licence, certificate, registration or other authority to the person of any action taken under this section or section 85; (g) recommend to the Director of Public Prosecutions or other relevant law enforcement agency that criminal or other legal proceedings be taken against the person. (2) Within 21 days of determining what action he or she will take in relation to an investigation, the Director must give the person— (a) a copy of the final investigation report; and (b) written notice of the action. (3) Nothing in subsection (1) is intended to restrict the Director to doing one thing only, nor to restrict the Director from taking action in relation to only one certificate, licence, registration or other authority. S. 84C inserted by No. 77/2001 s. 15. s. 84C 84C Public release of report (1) At the completion of an investigation under section 84, the Director may make public the report of the investigation or any part of the report. (2) During the course of an investigation under section 84, the Director may make public any findings, interim findings or recommendations arising out of the investigation. (3) However, the Director may only make a report, part of a report, finding or recommendation public if— (a) in the opinion of the Director, it is in the public interest to do so; and (b) the making public of the report, part, finding or recommendation will not be likely to prejudice the rights of any person in any criminal proceedings that may be instituted in connection with the matter that was investigated.
85 Cancellation or suspension of certificates, licences or registrations S. 85(1) amended by No. 77/2001 s. 31(1)(b). (1) In this section, a reference to the cancellation or suspension of a certificate includes a reference to the withdrawal of acceptance by the Director of a certificate issued by an authority as being equivalent to a certificate issued by the Director. S. 85(2) amended by Nos 28/1999 s. 10(a), 77/2001 s. 31(1)(b). (2) The Director may, if as a result of the report of an inspector or as a result of an investigation it is satisfied that it is appropriate to do so, cancel or suspend any certificate or licence issued or registration granted under this Act. S. 85(3) amended by Nos 52/1998 s. 311(Sch. 1 item 57.1), 28/1999 s. 10(b), 77/2001 s. 31(1)(b). (3) Any person whose certificate, licence or registration is cancelled or suspended may apply to the Victorian Civil and Administrative Tribunal for review of the decision of the Director. S. 85(3A) inserted by Nos 52/1998 s. 311(Sch. 1 item 57.2), 28/1999 s. 10(b). (3A) An application for review of a decision to cancel or suspend the certificate, licence or registration must be made within 28 days after the later of— (a) the day on which the decision is made; s. 85 (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. S. 85(3B) inserted by No. 9/2004 s. 13. (3B) If the Director has imposed a condition on a harbour master licence under section 26HE(1), the holder of the licence may apply to the Victorian Civil and Administrative Tribunal for a review of the decision of the Director. S. 85(3C) inserted by No. 9/2004 s. 13. (3C) An application for review of a decision of the Director under subsection (3B) must be made within 28 days of the later of— (a) the day on which the decision was made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
S. 85(4) amended by Nos 28/1999 s. 10(c)(i)–(iii), 77/2001 s. 31(1)(b). (4) Any person whose certificate, licence or registration is cancelled or suspended must, if that certificate or licence was issued or registration was granted by the Director, deliver the certificate or licence or certificate of registration to the Director without delay— S. 85(4)(a) amended by No. 77/2001 s. 31(1)(b). (a) after notification of the decision of the Director; or S. 85(4)(b) amended by No. 52/1998 s. 311(Sch. 1 item 57.3(a)(b)). (b) after notification of the decision of the Victorian Civil and Administrative Tribunal if the person has applied for review under subsection (3) and the Tribunal decides— S. 85(4)(b)(i) amended by No. 11/2002 s. 3(Sch. 1 item 44). (i) to confirm the Director's decision; or S. 85(4)(b)(ii) amended by No. 28/1999 s. 10(c)(iv). s. 85 (ii) to vary it in such a way that the certificate, licence or registration is cancelled or suspended even after the variation.
S. 85(5) inserted by No. 93/2000 s. 16. (5) In this section licence does not include an operator licence. Pt 8 Div. 4 (Heading and ss 85AA– 85AG) inserted by No. 17/2009 s. 4. Division 4—Improvement notices S. 85AA inserted by No. 17/2009 s. 4. 85AA Improvement notices s. 85AA (1) An improvement notice may only be served on a relevant person if the relevant person is engaged in commercial marine operations. (2) The Director or an inspector may serve on a relevant person an improvement notice if the Director or inspector believes on reasonable grounds that the relevant person— (a) is contravening a provision of a relevant marine safety law; or (b) has contravened a provision of a relevant marine safety law in circumstances that make it likely the contravention will continue or be repeated; or (c) in the case of a relevant person who is the holder of a certificate, licence or registration— (i) is contravening a condition or restriction of the certificate, licence or registration; or (ii) has contravened a condition or restriction of the certificate, licence or registration in circumstances that make it likely the contravention will continue or be repeated.
(4) An inspector must, before serving an improvement notice under this section, inform the Director of his or her intention to do so. (5) An improvement notice must— (a) state the basis for the Director's or inspector's belief on which the service of the notice is based; s. 85AA (b) specify the provision of the relevant marine safety law in respect of which that belief is held; (c) specify a date (with or without a time) by which the relevant person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the Director or inspector considers is reasonable; (d) include information about obtaining a review of the decision to serve the notice; (e) set out the penalty for contravening the notice; (f) include a statement of the effect of section 85AG; (g) state that it is served under this section. (6) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (7) Without limiting subsection (6), an improvement notice may include a direction that if the relevant person has not remedied the contravention, likely contravention, matters or activities (as the case may be) by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until the Director or an inspector serves a clearance certificate under section 85AF.
S. 85AB inserted by No. 17/2009 s. 4. 85AB Improvement notices—operation of vessel or closure of mooring or other physical structure associated with a vessel s. 85AB (1) Without limiting section 85AA, an improvement notice may require a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel— (a) that the relevant person owns or controls; or (b) for which the relevant person is responsible. (2) If an improvement notice requires a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel, the relevant person must publish a notice of the required stoppage or closure in a newspaper circulating— (a) generally in the State; and (b) in the area in which the vessel is operated or the mooring or other physical structure is located. S. 85AC inserted by No. 17/2009 s. 4. 85AC Contravention of improvement notice s. 85AC (1) A relevant person on whom an improvement notice has been served must not refuse or fail to comply with the notice unless the relevant person has a reasonable excuse.
In the case of a body corporate, 2500 penalty units. (2) An offence against subsection (1) is an indictable offence. Note However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989). S. 85AD inserted by No. 17/2009 s. 4. 85AD Amendment of improvement notices (1) An improvement notice served by the Director may be amended by the Director. (2) An improvement notice served by an inspector may be amended by any inspector or the Director. (3) An amendment of an improvement notice is effected by service on the relevant person affected of a notice stating the terms of the amendment. (4) An amendment of an improvement notice is ineffective if it purports to deal with a contravention of a different provision of a relevant marine safety law from that dealt with in the improvement notice as first served. (5) A notice of an amendment of an improvement notice must— (a) state the reasons for the amendment; (b) include information about obtaining a review of the decision to amend the notice; (c) state that it is served under this section.
S. 85AE inserted by No. 17/2009 s. 4. 85AE Cancellation of improvement notices s. 85AE (1) An improvement notice served on a relevant person may only be cancelled by the Director. (2) Notice of cancellation of an improvement notice is required to be served on the relevant person affected. S. 85AF inserted by No. 17/2009 s. 4. 85AF Clearance certificates for improvement notices (1) This section applies if the Director or an inspector is satisfied that a relevant person served with an improvement notice has complied with all the requirements of, or a requirement of, that notice. (2) The Director or an inspector must serve a clearance certificate on the relevant person to the effect that (as the case requires)— (a) all of the requirements of the improvement notice have been complied with; or (b) the specific requirement of the improvement notice has been complied with. (3) The clearance certificate must be served as soon as practicable after the Director or an inspector is so satisfied. (4) A requirement of the improvement notice to which the clearance certificate relates ceases to be operative on receipt by the relevant person of that certificate.
S. 85AG inserted by No. 17/2009 s. 4. 85AG Proceedings for offences not affected by improvement notices or clearance certificates (1) The service, amendment or cancellation of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served. (2) The issue of a clearance certificate under section 85AF in respect of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served.
85AM) inserted by No. 17/2009 s. 4. Division 5—Prohibition notices S. 85AH inserted by No. 17/2009 s. 4. 85AH Prohibition notice s. 85AG (1) A prohibition notice may only be served on a person who has or appears to have control over an activity to which this section applies occurring during commercial marine operations. (2) This section applies if— (a) an activity is occurring on, or in connection with the operation of, a vessel, that involves or will involve an immediate risk to the safety of a person; or (b) an activity is occurring at a place where vessels are operated, stored, moored, berthed or placed that involves or will involve an immediate risk to the safety of a person; or (c) an activity may occur at a place where vessels are operated, stored, moored, berthed or placed that, if it occurs, will involve an immediate risk to the safety of a person; or (d) an activity may occur at, on, or in the immediate vicinity of, infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel, or vessels, that, if it occurs, will involve an immediate risk to the safety of the operation of the vessel. (3) If the Director or an inspector believes on reasonable grounds that an activity referred to in subsection (2) is occurring or may occur, the Director or inspector may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying out of the activity, or the carrying out of the activity in a specified way, until the Director or inspector serves a certificate under section 85AL. (4) An inspector must, before serving a prohibition notice under this section, inform the Director of his or her intention to do so. s. 85AH (5) A prohibition notice must— (a) state the basis for the Director's or inspector's belief on which the service of the notice is based; (b) specify the activity which the Director or inspector believes involves or will involve the risk and the matters which give or will give rise to the risk; (c) if the Director or inspector believes that the activity involves a contravention or likely contravention of a provision of a relevant marine safety law, specify that provision and state the basis for that belief; (d) set out the penalty for contravening the notice; s. 85AH (e) include information about obtaining a review of the decision to serve the notice; (f) include a statement of the effect of section 85AM; (g) state that it is served under this section. (6) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (5)(c). (7) A prohibition notice that prohibits the carrying out of an activity in a specified way may do so by specifying one or more of the following— (a) a vessel is not to be operated; (b) a place where vessels are operated, stored, moored, berthed or placed, at which the activity is not to be carried out; (c) infrastructure or part of infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel or a place in the immediate vicinity of infrastructure or vessels at which the activity is not to be carried out; (d) any thing that is not to be used in connection with the activity; (e) any procedure that is not to be followed in connection with the activity. S. 85AI inserted by No. 17/2009 s. 4. 85AI Contravention of prohibition notice s. 85AI (1) A person on whom a prohibition notice is served must not refuse or fail to comply with the notice unless the person has a reasonable excuse.
In the case of a body corporate, 2500 penalty units. (2) An offence against subsection (1) is an indictable offence. Note However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989). S. 85AJ inserted by No. 17/2009 s. 4. 85AJ Amendment of prohibition notice (1) A prohibition notice served by the Director may be amended by the Director. (2) A prohibition notice served by an inspector may be amended by any inspector or the Director. (3) An amendment of a prohibition notice served is effected by service on the relevant person affected of a notice stating the terms of the amendment. (4) An amendment of a prohibition notice served is ineffective if it purports to prohibit the carrying out of an activity that is different from the activity prohibited by the prohibition notice as first served. (5) A notice of an amendment of a prohibition notice must— (a) state the reasons for the amendment; (b) include information about obtaining a review of the decision to amend the notice; (c) state that it is served under this section.
S. 85AK inserted by No. 17/2009 s. 4. 85AK Withdrawal of prohibition notices (1) A prohibition notice served on a relevant person may only be withdrawn by the Director. (2) Notice of the withdrawal of a prohibition notice is required to be served on the relevant person affected.
S. 85AL inserted by No. 17/2009 s. 4. 85AL Certificates that matters that give rise to immediate risks to safety remedied s. 85AK (1) This section applies if the Director or an inspector is satisfied that a relevant person served with a prohibition notice has remedied all of the matters or a matter— (a) that gave, or will give, rise to an immediate risk to the safety of a person or the operation of a vessel because of the carrying out of the activity; and (b) specified in the prohibition notice. (2) The Director or an inspector must serve a certificate on the relevant person to the effect that (as the case requires)— (a) all of the matters or the matter that gave rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied; or (b) all of the matters or the matter that could have given rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied. (3) The certificate must be served as soon as practicable after the Director or inspector is so satisfied.
S. 85AM inserted by No. 17/2009 s. 4. 85AM Proceedings for offences not affected by prohibition notices or certificates issued under section 85AL s. 85AM (1) The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served. (2) The issue of a certificate under section 85AL in respect of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served.
S. 85AN inserted by No. 17/2009 s. 4. 85AN Reviewable decisions (1) The following table sets out— (a) decisions made under Divisions 4 and 5 that are reviewable in accordance with this Division (reviewable decisions); and (b) who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision). (2) To avoid doubt, sections 4 and 5 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of this Act. s. 85AN Note Under section 4 of that Act, a person makes a decision if the person refuses to make a decision or an instrument, imposes a condition or restriction or does or refuses to do any other act or thing. Section 5 of that Act sets out when a person's interests are affected by a decision.
S. 85AO inserted by No. 17/2009 s. 4. 85AO Review by the Director s. 85AO (1) An eligible person may, in relation to a reviewable decision, other than a decision made by the Director, apply to the Director for review of the decision within— (a) 28 days after the day on which the decision first came to the eligible person's notice; or (b) such longer period as the Director allows. (2) The application must be in the form approved in writing by the Director. (3) If an application is made to the Director in accordance with this section, the Director must make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Director considers appropriate. (4) The Director must give a written notice to the applicant setting out— (a) the Director's decision under subsection (3) and the reasons for the decision; and (b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based— and must do so within 28 days after the application is made or, if the reviewable decision was made under section 85AA(5) or 85AH(5) within 7 days after the application is made. (5) If the Director has not notified an applicant of a decision in accordance with subsection (4), the Director is taken to have made a decision to affirm the reviewable decision. (6) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Director, on his or her own initiative or on the application of the applicant for review, stays the operation of the decision pending the determination of the review. (7) The Director must make a decision on an application for a stay within 24 hours after the making of the application. (8) If the Director has not made a decision in accordance with subsection (7), the Director is taken to have made a decision to grant a stay. (9) The Director may attach any conditions to a stay of the operation of a reviewable decision that he or she considers appropriate. S. 85AP inserted by No. 17/2009 s. 4. 85AP Review by VCAT s. 85AP (1) A person may apply to VCAT for review of— (a) a reviewable decision made by the Director; or (b) a decision made, or taken to have been made, by the Director under section 85AO in respect of a reviewable decision, including a decision concerning a stay of the operation of the reviewable decision— if the person is an eligible person in relation to the reviewable decision. (2) The application must be made— (a) within 28 days after the day on which the decision first came to the applicant's notice; or (b) if the Director is required by the Victorian Civil and Administrative Tribunal Act 1998 to give the applicant a statement of reasons, within 28 days after the day on which the applicant is given the statement— whichever period ends last.
S. 85AQ inserted by No. 17/2009 s. 4. 85AQ Commercial benefits penalty order s. 85AQ (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, make an order under this section. (2) The court may make a commercial benefits penalty order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that— (a) was obtained or obtainable, by the person or by an associate of the person, from the commission of the offence; and (b) in the case of a journey that was interrupted or not commenced because of action taken by the Director or an inspector in connection with the commission of the offence, would have been obtained or obtainable, by the person or by an associate of the person, from the commission of the offence had the journey been completed. (3) In estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court may take into account— (a) benefits of any kind, whether monetary or otherwise; and (b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and (c) any other matters that it considers relevant, including (for example)— (i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and (ii) the distance over which any such goods were or were to be carried. (4) However, in estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (5) Nothing in this section prevents the court from ordering payment of an amount that is— (a) less than 3 times the estimated gross commercial benefit; or (b) less than the estimated gross commercial benefit. S. 85AR inserted by No. 17/2009 s. 4. 85AR Supervisory intervention order s. 85AR (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, if the court considers the person to be a systematic or persistent offender against a relevant marine safety law, make an order under this section. (2) The court may make a supervisory intervention order requiring the person (at the person's own expense and for a specified period not exceeding one year) to do all or any of the following— (a) to do specified things that the court considers will improve the person's compliance with relevant marine safety law or specified aspects of a relevant marine safety law, including (for example) the following— (i) appointing or removing staff to or from particular activities or positions; (ii) training and supervising staff; (iii) obtaining expert advice as to maintaining appropriate compliance; (iv) installing, monitoring, compliance, managerial or operational equipment; (v) implementing, monitoring, compliance, managerial or operational practices, systems or procedures; (b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Director or a person nominated by the Director;
s. 85AR (c) to furnish compliance reports to the Director or the court or both as specified in the order; (d) to appoint a person to have responsibilities— (i) to assist the person in improving compliance with a relevant marine safety law or specified aspects of a relevant marine safety law; and (ii) to monitor the person's performance in complying with a relevant marine safety law or specified aspects of a relevant marine safety law and in complying with the requirements of the order; and (iii) to furnish compliance reports to the Director or the court or both as specified in the order. (3) The court may specify matters that are to be dealt with in compliance reports and the form, manner and frequency in which compliance reports are to be prepared and furnished. (4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form, manner and frequency in which they are to be made public. (5) The court may only make a supervisory intervention order if it is satisfied that the order is capable of improving the person's ability or willingness to comply with the relevant marine safety law, having regard to— s. 85AR (a) the offences against a relevant marine safety law of which the person has been previously found guilty; and (b) the offences against a relevant marine safety law for which the person has been proceeded against by way of unwithdrawn infringement notices; and (c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the safety of marine operations. (6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order. (7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of— (a) the Director; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment. (8) The court may have regard to any offence committed by the person against a relevant marine safety law before the commencement of section 4 of the Transport Legislation Miscellaneous Amendments Act 2009 for the purposes of— (a) considering whether a person is a systematic or persistent offender against a relevant marine safety law; and
s. 85AR (b) having regard to offences of which the person has been previously found guilty under subsection (5)(a). (9) In this section, compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to— (a) the performance of the person in complying with— (i) a relevant marine safety law or specified aspects of a relevant marine safety law specified in the order; and (ii) the requirements of the order; and
(i) things done by the person to ensure that any failure by the person to comply with the relevant marine safety law or the specified aspects of the relevant marine safety law does not continue; and (ii) the results of those things having been done.
S. 85AS inserted by No. 17/2009 s. 4. 85AS Contravention of supervisory intervention order s. 85AS A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement.
In the case of a body corporate, 600 penalty units. S. 85AT inserted by No. 17/2009 s. 4. 85AT Exclusion orders (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, if the court considers the person to be a systematic or persistent offender against the relevant marine safety laws, make an order under this section. (2) For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against relevant marine safety laws, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from— (a) operating a vessel on State waters; or (b) managing infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel; or
S. 85AT(2)(ba) inserted by No. 93/2009 s. 6. (ba) being a director, secretary or officer concerned in the management of a body corporate involved in managing infrastructure relating to the operation, storage, mooring, berthing or placement of vessels within the State; or (c) being involved in managing infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel that is in the State or operating a vessel in the State except as a pilot. (3) The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order under section 85AR is not appropriate, having regard to— (a) the offences against a relevant marine safety law of which the person has previously been found guilty; and s. 85AT (b) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the safety of marine operations. (4) A court that has power to make an exclusion order may revoke or amend the exclusion order on the application of— (a) the Director; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting the revocation or amendment. (5) The court may have regard to any offence committed by the person against a relevant marine safety law before the commencement of section 4 of the Transport Legislation Miscellaneous Amendments Act 2009 for the purposes of— (a) considering whether a person is a systematic or persistent offender against a relevant marine safety law; and (b) having regard to offences of which the person has been previously found guilty under subsection (3)(a).
S. 85ATA inserted by No. 93/2009 s. 7. 85ATA Corporations displacement provision Section 85AT is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 2D of that Act. Note Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. S. 85AU inserted by No. 17/2009 s. 4. 85AU Contravention of exclusion order s. 85ATA A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.
In the case of a body corporate, 600 penalty units. S. 85AV inserted by No. 17/2009 s. 4. 85AV Release on the giving of a safety undertaking s. 85AV (1) If a court convicts a person or finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations, the court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions. (2) An undertaking must specify the following conditions— (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; (b) that the offender does not commit, during the period of the adjournment, any offence against a relevant marine safety law; (c) that the offender observes any special conditions imposed by the court. (3) Without limiting subsection (2)(c), the court may impose on an offender special conditions that the offender— (a) engage a consultant, who is approved in writing by the Director, to advise on or assist with safety matters; and (b) develop and implement a systematic approach to managing risks to safety that arise or may arise in the conduct of the offender's undertaking; and (c) arrange for the carrying out of an audit of the offender's undertaking in relation to safety by an independent person who is approved in writing by the Director. (4) An offender who has given an undertaking under this section may be called on to appear before the court— (a) by order of the court; or (b) by notice issued by the proper officer (within the meaning of section 72(4) of the Sentencing Act 1991) of the court. (5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the appearance. (6) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding. (7) The court may make an order under this section in relation to an offender in addition to or instead of— (a) imposing a penalty on the offender; or (b) making any other order that the court may make in relation to the offence.
S. 85AW inserted by No. 17/2009 s. 4. 85AW Variation or breach of orders under section 85AV s. 85AW Sections 78 and 79 of the Sentencing Act 1991 (and any definitions in that Act of terms used in those sections) apply to an order under section 85AV for the release of an offender as though they were incorporated into this Act and as though— (a) a reference to Subdivision (2) or (3) were instead a reference to section 85AV; and (b) a reference to a prescribed person, a member of a prescribed class of persons, the informant or a police prosecutor were instead a reference to the Director; and (c) the reference in section 79(4) of the Sentencing Act 1991 to a level 10 fine were instead a reference to a fine not exceeding 10 penalty units for a natural person or 50 penalty units for a body corporate; and (d) any other necessary modifications were made.
85AX Adverse publicity order (1) A court that finds a person guilty of an offence against this Act or regulations made under this Act arising out of commercial marine operations may, on the application of the prosecutor or Director, make an order under this section. (2) The court may make an adverse publicity order requiring the offender to do all or any of the following— (a) to take either or both of the following actions within the period specified in the order— (i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and (b) to give the Director within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (3) The court may make an order under this section in addition to— (a) imposing a penalty on the offender; or (b) making any other order that the court may make in relation to the offence.
s. 85AX (4) This section does not limit the court's powers under any other provision of this Act. __________________
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