Version No. 100 Marine (Drug, Alcohol and Pollution Control) Act 1988 No. 52 of 1988 Version incorporating amendments as at 31 January 2018 The Parliament of enacts as follows: S. 1 substituted by No. 65/2010 s. 376. 1 Purpose The purpose of this Act is to provide for safe marine operations in by— (a) prohibiting masters and other persons involved in vessel operations from being under the influence of prescribed drugs or impaired by alcohol when undertaking those vessel operations; and (b) allocating roles, responsibilities and liabilities to the Director and others to ensure there is a capacity and obligation to respond to marine incidents that have the potential to result in pollution. 2 Commencement This Act comes into operation on a day or days to be proclaimed. 3 Definitions (1) In this Act— S. 3(1) def. of operator offence inserted by No. 23/2001 s. 17. accompanying operator offence means an offence under section 28(1) which is committed by a person who is taken to be in charge of a vessel by reason of the operation of section 27(1AAA);
S. 3(1) def. of marine infringement substituted by No. 77/2001 s. 22(b), amended by Nos 9/2004 s. 3(1)(d)(i)(ii), 45/2010 s. 44(e), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)). * * * * * S. 3(1) def. of marine licence inserted by No. 65/2010 s. 377(1)(e) (as amended by No. 78/2011 s. 35(2)). marine licence has the same meaning as it has in the Marine Safety Act 2010; master, in relation to a vessel, means a person (other than a person who is acting as the pilot of that vessel) having command or charge of the vessel; S. 3(1) def. of member of the police force inserted by No. 9/2004 s. 3(1)(a), repealed by No. 37/2014 s. 10(Sch. item 106.1(b)). * * * * * S. 3(1) def. of National Regulator inserted by No. 36/2013 s. 84(1)(c). National Regulator means the National Marine Safety Regulator within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law;
S. 3(1) def. of port of Melbourne waters inserted by No. 9/2004 s. 3(1)(a), amended by No. 45/2010 s. 44(k), repealed by No. 65/2010 s. 377(1)(a) (as amended by No. 78/2011 s. 35(1)). * * * * * S. 3(1) def. of port waters inserted by No. 82/1995 s. 153(1), amended by No. 45/2010 s. 44(l). port waters has the same meaning as in the Port Management Act 1995; S. 3(1) def. of prescribed concentration of alcohol substituted by No. 93/2000 s. 3(b) (as amended by No. 23/2001 s. 23), amended by Nos 90/2001 s. 3(1)(a), 94/2003 s. 34(1)(a)(b), 66/2012 s. 3(2), 36/2013 s. 84(1)(e). prescribed concentration of alcohol means— (a) in the case of a person who is operating a vessel underway, or is the master or pilot of a vessel underway or at anchor, where any of the following apply— (i) the person is under the age of 21 years; (ii) the vessel is a domestic commercial vessel— any concentration of alcohol present in the blood or breath of that person; and (b) in the case of any other person— (i) a concentration of alcohol present in the blood of that person of 005 grams per 100 millilitres of blood; or
Pt 3A (Heading and ss 26A−26I) inserted by No. 82/1995 s. 159, amended by Nos 51/1996 s. 18, 77/2001 s. 31(1)(b), 9/2004 ss 8, 9, 45/2010 ss 46, 47, 38/2011 ss 37, 38, repealed by No. 65/2010 s. 390(1). * * * * * Pt 3B (Heading and ss 26J–26T) inserted by No. 28/1999 s. 5, amended by Nos 77/2001 s. 31(1) (b)(f)(g), 10/2004 s. 15(Sch. 1 item 18), repealed by No. 65/2010 s. 390(1). * * * * * 27 Interpretation S. 27(1) amended by No. 94/2003 s. 34(2)(a)(b), substituted by No. 66/2012 s. 4(1). (1) For the purposes of this Part— (a) if it is established that at any time within 3 hours after an alleged offence against paragraph (a) or (b) of section 28(1) a certain concentration of alcohol was present in the blood or breath of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that
S. 27(3) def. of vessel under way substituted as def. of vessel underway by No. 66/2012 s. 4(5)(b). vessel underway, in relation to a vessel, includes any period when the vessel is being secured, moored or retrieved from the water but does not include a vessel that is— (a) at anchor; or (b) properly made fast to the shore or properly made fast at a registered mooring or at anchor at a registered mooring; or (c) aground; or (d) ashore. 28 Offences involving alcohol or other drugs (1) A person is guilty of an offence if— S. 28(1)(a) amended by No. 65/2010 s. 379(1)(a), substituted by No. 66/2012 s. 5(1). (a) the person operates a vessel or is the master or pilot of a vessel underway or at anchor while under the influence of alcohol or any other drug to such an extent as to— (i) in the case of a person operating a vessel, be incapable of having proper control of the vessel; or (ii) in the case of a master or pilot of a vessel, be incapable of directing the proper operation of the vessel; or S. 28(1)(b) amended by Nos 23/2001 s. 19(a), 94/2003 s. 34(4), 65/2010 s. 379(1)(a), 66/2012 s. 5(2). (b) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or S. 28(1)(ba) inserted by No. 66/2012 s. 5(3). (ba) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while impaired by a drug; or
S. 31(9A) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 ss 27(3), 28, 94/2003 s. 36, 65/2010 s. 385(1), 66/2012 s. 11(5), 37/2014 s. 10(Sch. item 106.4(d)). (9A) The person who required a sample of breath under subsection (1), (2), (2AA) or (2A) from a person may require that person to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of that person's blood for analysis if it appears to him or her that— (a) that person is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or S. 31(9A)(b) amended by No. 94/2003 ss 34(11), 35(6). (b) the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever— and for that purpose may further require that person to accompany a police officer to a place where the sample is to be taken and to remain there until whichever of the following occurs first— S. 31(9A)(c) inserted by No. 66/2012 s. 11(5)(b). (c) the sample has been taken; S. 31(9A)(d) inserted by No. 66/2012 s. 11(5)(b). (d) the passing of 3 hours after the person was— (i) operating a vessel; or (ii) the master or pilot of a vessel underway or at anchor; or (iii) an occupant of a vessel.
S. 31A (2A)(a)(ii) amended by No. 65/2010 s. 386(2)(b). (ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 12 months). (b) for a second or subsequent offence— S. 31A (2A)(b)(i) amended by No. 65/2010 s. 386(2)(b). (i) in the case of an offender who is the holder of a marine licence, cancel the licence and disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months); S. 31A (2A)(b)(ii) amended by No. 65/2010 s. 386(2)(b). (ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months). S. 31A(3) amended by Nos 7/1995 s. 4(3), 65/2010 s. 386(3), 37/2014 s. 10(Sch. item 106.5), substituted by No. 55/2017 s. 35(2). (3) Subsection (2) does not apply if, in the opinion of the doctor first responsible for the examination or treatment of the person, the taking of a blood sample from that person would be prejudicial to that person's proper care and treatment. S. 31A(4) amended by Nos 7/1995 s. 4(4), 55/2017 s. 35(3). (4) A person to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by an approved health professional or doctor at a place which
he or she enters or to which he or she is brought for examination or treatment. (5) If a sample of a person's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except for the purposes of section 32. S. 31A(6) amended by No. 55/2017 s. 35(4). (6) A person must not hinder or obstruct an approved health professional or doctor attempting to take a sample of the blood of any other person in accordance with this section. 12 penalty units. S. 31A(7) amended by No. 55/2017 s. 35(5). (7) No action lies against an approved health professional or doctor in respect of anything properly and necessarily done by the approved health professional or doctor in the course of taking any sample of blood which the approved health professional or doctor believes on reasonable grounds was required or allowed to be taken from any person under this section. S. 31AA inserted by No. 66/2012 s. 13. 31AA Drug assessment S. 31AA(1) amended by No. 37/2014 s. 10(Sch. item 106.6(a)). (1) A police officer may at any time require— (a) any person he or she finds operating a vessel; or (b) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or (c) any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or
(6) If a video-recording or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that person in writing whether the destruction has occurred. (7) A person who knowingly— (a) fails to destroy; or (b) uses, or causes or permits to be used— a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months. (8) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months. S. 31AD inserted by No. 66/2012 s. 13. 31AD Preliminary oral fluid tests S. 31AD(1) amended by No. 37/2014 s. 10(Sch. item 106.8). (1) A police officer may at any time require— (a) any person he or she finds operating a vessel; or
the requirement to arrange for the taking, in the presence of any police officer, of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the police officer in whose presence the sample is taken. S. 31AE(19) repealed by No. 55/2017 s. 37. * * * * * (20) Nothing in subsection (18) relieves a person from any penalty under section 28(1)(eb) for refusing to provide a sample of oral fluid. (21) Evidence derived from a sample of oral fluid provided in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (18) if reasonable efforts were made to comply with the request. S. 31AE(22) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(ii)). (22) In any proceeding under this Act— S. 31AE(22)(a) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(i)). (a) the statement of any police officer that on a particular date he or she was authorised under subsection (6) for the purposes of this section; or
S. 33A inserted by No. 20/1993 s. 11. 33A Avoidance of certain provisions in contracts of insurance S. 33A(1) amended by Nos 94/2003 s. 34(13), 65/2010 s. 389, 55/2017 s. 40. (1) Any covenant, term, condition, or other provision of a contract or other agreement is void to the extent that it purports to exclude or limit the liability of an insurer under a contract of insurance in the event of the master of a vessel having a concentration of alcohol present in his or her breath or blood as indicated by an analysis of his or her breath or blood of not more than 0∙05 grams per 210 litres of exhaled air or 100 millilitres of blood (as the case requires). (2) Subsection (1) applies to a contract of insurance whether entered into before or after the commencement of section 11 of the Marine (Amendment) Act 1993. S. 33B inserted by No. 66/2012 s. 17. 33B Prohibited analysis (1) In this section— DNA database has the meaning given by section 464(2) of the Crimes Act 1958; Part 4 sample means a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under this Part; permitted purpose, in relation to an analysis of a Part 4 sample, means the purpose of determining— (a) whether alcohol or any other drug is present in the sample; or (b) the level of concentration in which alcohol or any other drug is present in the sample;
in or in connection with any exercise of the powers conferred by subsection (1)— S. 38(3)(a) amended by No. 78/2011 s. 45(1)(a). (a) if the discharge occurs or is likely to occur from any place on land, from the occupier of that place; or S. 38(3)(b) amended by No. 78/2011 s. 45(1)(a). (b) if the discharge occurs or is likely to occur from any vessel, from the owner of that vessel; or S. 38(3)(c) amended by No. 78/2011 s. 45(1). (c) if the discharge occurs or is likely to occur from any apparatus, from the person in charge of the apparatus. S. 38(4) amended by Nos 77/2001 s. 31(1)(b), 78/2011 s. 45(2). (4) The Minister may reimburse a public statutory body for the costs and expenses incurred by it in or in connection with any exercise of the powers conferred by subsection (1) if the Minister is satisfied that the action taken by the public statutory body was reasonable or if the action was taken with the approval of, or at the request of, the Minister. (5) If the Minister reimburses a public statutory body under subsection (4), the Minister may recover the costs and expenses in accordance with subsection (3) as if those costs and expenses had been incurred by the Minister in or in connection with an exercise of the powers conferred by subsection (1). (6) Costs and expenses recoverable under this section may be recovered in the course of criminal proceedings in respect of the discharge or may be recovered in any court of competent jurisdiction as a debt due to the authority or body even if no proceedings have been taken in respect of the discharge. S. 38(7) repealed by No. 55/2017 s. 41. * * * * *
S. 61A(3) amended by No. 65/2010 s. 389A(3) (as amended by No. 78/2011 s. 36). (3) Despite subsection (2), if a transport safety infringement notice is withdrawn under subsection (7)(b) the person to whom the notice was issued must for all purposes be taken not to have been convicted of the offence specified in the notice. S. 61A(4) amended by No. 65/2010 s. 389A(4) (as amended by No. 78/2011 s. 36). (4) A person may object to the transport safety infringement notice by giving notice in writing of the objection to the person specified for that purpose in the transport safety infringement notice. (5) A notice of objection must state— S. 61A(5)(a) amended by No. 65/2010 s. 389A(5) (as amended by No. 78/2011 s. 36). (a) that the person to whom the transport safety infringement notice was issued refuses to pay the penalty; and (b) that the person requests that the matter be dealt with by a court; and S. 61A(5)(c) amended by No. 65/2010 s. 389A(5) (as amended by No. 78/2011 s. 36). (c) that the person intends to defend any charge arising out of the facts specified in the transport safety infringement notice. S. 61A(6) amended by No. 65/2010 s. 389A(6) (as amended by No. 78/2011 s. 36). (6) The giving of notice of objection to the transport safety infringement notice has the effect that— S. 61A(6)(a) amended by No. 65/2010 s. 389A(6) (as amended by No. 78/2011 s. 36). (a) the transport safety infringement notice is cancelled; and
notice took effect as a conviction, that it had been issued. (3) If the court grants an extension of time, and if a notice of objection is given, in accordance with section 61A(4) or with any order made by the court, before the expiry of the extended time, the giving of the notice has the effect that— (a) the conviction is set aside; and S. 61B(3)(ab) inserted by No. 93/2000 s. 12(1). (ab) any cancellation, disqualification or suspension that resulted from the conviction is set aside; and S. 61B(3)(ac) inserted by No. 93/2000 s. 12(1), amended by No. 65/2010 s. 389B(3) (as amended by No. 78/2011 s. 36). (ac) anything done by the person before he or she became aware that the transport safety infringement notice had been issued that constituted an offence only because of any cancellation, disqualification or suspension, that resulted from the conviction must be taken not to constitute that offence; and S. 61B(3)(b) amended by Nos 32/2006 s. 71(3)(a)(b), 65/2010 s. 389B(3) (as amended by No. 78/2011 s. 36), 47/2014 s. 282 (as amended by No. 29/2016 s. 55). (b) any of the procedures set out in the Infringements Act 2006 or the Fines Reform Act 2014 that are being used for the enforcement of the amount specified in the transport safety infringement notice as payable in respect of the offence for which the notice was issued must be discontinued and any warrant issued under that Act ceases to have effect; and S. 61B(3)(c) amended by No. 65/2010 s. 389B(3) (as amended by No. 78/2011 s. 36). (c) the transport safety infringement notice is cancelled; and S. 61B(3)(d) amended by No. 68/2009 s. 97(Sch. item 84.6). (d) the person may only be proceeded against by filing a charge-sheet charging the alleged offence.
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or (b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate. S. 68 amended by No. 82/1995 s. 166, substituted by No. 77/2001 s. 8, repealed by No. 6/2010 s. 201(1) (Sch. 5 item 2.1) (as amended by No. 45/2010 s. 20). * * * * * S. 69 substituted by No. 82/1995 s. 167(1), amended by No. 46/1998 s. 7(Sch. 1), substituted by No. 77/2001 s. 8, amended by Nos 85/2003 s. 34(2)(b), 9/2004 s. 25(Sch. item 4), repealed by No. 6/2010 s. 201(1) (Sch. 5 item 2.1) (as amended by No. 45/2010 s. 20). * * * * *
Pt 8 Div. 6 (Heading and ss 85AN– 85AP) inserted by No. 17/2009 s. 4, repealed by No. 65/2010 s. 391(5). * * * * * Pt 8 Div. 7 (Heading and ss 85AQ– 85AW) inserted by No. 17/2009 s. 4, amended by Nos 68/2009 s. 97(Sch. item 84.10), 93/2009 ss 6, 7, 19/2010 s. 16, 65/2011 s. 107(Sch. item 9), repealed by No. 65/2010 s. 391(5). * * * * * S. 85A inserted by No. 82/1995 s. 170, amended by No. 77/2001 s. 31(3)(b), repealed by No. 65/2010 s. 392(1). * * * * * S. 86 repealed by No. 65/2010 s. 392(1). * * * * *
S. 107AA inserted by No. 93/2000 s. 20, repealed by No. 65/2010 s. 392(1). * * * * * S. 107B inserted by No. 17/1994 s. 22. 107B Supreme Court—limitation of jurisdiction It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an action of a kind referred to in section 31(9E). S. 107C inserted by No. 14/2000 s. 29. 107C Supreme Court—limitation of jurisdiction It is the intention of sections 31(9E) and 32(9), as amended by section 27 of the Road Safety (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975. S. 108 amended by Nos 82/1995 s. 177, 77/2001 s. 31(1)(b), 78/2010 s. 24(Sch. 1 items 18.1, 18.2), repealed by No. 65/2010 s. 392(1). * * * * * S. 108A inserted by No. 9/2004 s. 19, repealed by No. 65/2010 s. 392(1). * * * * *
Assent Date: 13.12.11 Commencement Date: Ss 44–49 on 1.1.12: Special Gazette (No. 423) 21.12.11 p. 4 : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Transport Legislation Amendment (Marine Drug and Alcohol Standards Modernisation and Other Matters) Act 2012, No. 66/2012 Assent Date: 7.11.12 Commencement Date: Ss 3–24 on 1.12.12: Special Gazette (No. 373) 7.11.12 p. 1 : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Marine (Domestic Commercial Vessel National Law Application) Act 2013, No. 36/2013 Assent Date: 18.6.13 Commencement Date: Ss 84–88 on 1.7.13: Special Gazette (No. 226) 25.6.13 p. 1 : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Road Safety and Sentencing Acts Amendment Act 2013, No. 56/2013 Assent Date: 24.9.13 Commencement Date: S. 29 on 30.9.13: s. 2(2) : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Statute Law Revision Act 2013, No. 70/2013 Assent Date: 19.11.13 Commencement Date: S. 4(Sch. 2 item 29) on 1.12.13: s. 2(1) : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Emergency Management Act 2013, No. 73/2013 Assent Date: 3.12.13 Commencement Date: S. 96 on 1.7.14: Special Gazette (No. 148) 13.5.14 p. 1 : This information relates only to the provision/s amending the Marine (Drug, Alcohol and Pollution Control) Act 1988 Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014