Some members of the CoastView community have expressed a desire for more clarification on the new boating RBT’s embodied in the Marine Safety (Misuse of Alcohol) Act 2006.
Inspector Ross Paine of the Tasmania Police Marine and Rescue Services has kindly provided CoastView.com.au with a briefing note on the subject which is included below along with the media release from Minister David Llewellyn and links to the relevant legislation on the Tasmanian Police website.
Hopefully this will help Tasmanian mariners and recreational boaters better understand the new laws.
Download the “Alcohol and Boats Don’t Mix” PDF here from Tasmania Police
Get more information and links to the Marine Safety (Misuse of Alcohol) Act 2006 Legislation on the Tasmania Police webpage.
---- Briefing Note from Tasmania Police ---
Marine Safety (Misuse of Alcohol) Act 2006
General
The intention of the Marine Safety (Misuse of Alcohol) Act 2006 (the Act) is to improve marine safety by placing certain restrictions on the use of alcohol by persons having responsibilities connected with the operations of vessels and by providing for the enforcement of those restrictions.
The legislation came into effect on 23 December 2006.
Restrictions on the use of alcohol by mariners
The key offence provisions contained in the Act are:
• a prohibition on operating a commercial vessel if a person has any alcohol in their breath or blood;
• a prohibition on operating any other vessel, if a person has a breath or blood alcohol concentration exceeding 0.05%;
• a prohibition on an owner or person in charge of a commercial vessel, causing or allowing another person who has alcohol in his or her breath or blood, to operate that commercial vessel; and
• a prohibition on an owner or person in charge of a non-commercial vessel, causing or allowing a person who has a breath or blood alcohol concentration exceeding 0.05%, to operate that vessel.
Which vessels does the legislation apply to?
The legislation applies to vessels (including yachts) that are, wholly or partly propelled by an engine, or designed or intended to be wholly or partly propelled by an engine. The engine need not be installed; it is sufficient if it is aboard the vessel and is capable of being temporarily mounted. The legislation also applies to yachts which are 6 metres or more which do not have an engine aboard.
It does not apply to a vessel under the control of the Australian Defence Force, or a warship, naval auxiliary or other vessel operating exclusively in the non-commercial government service of a foreign country. Non commercial government service includes scientific research activity.
Interpretation
“commercial purposes” includes, the purposes of a passenger transport or ferry service, whether for paying or non-paying passengers, and research purposes. This is an inclusive rather than exclusive definition;
“commercial vessel” means a vessel, other than a fishing vessel, that is being operated for commercial purposes;
“operating” a vessel, means being aboard and in charge of the vessel, and/or being aboard the vessel and exerting any degree of control over its means of steering or propulsion;
“secured” in relation to a vessel, means that the vessel is riding at anchor (other than a sea anchor), tied up to a mooring, moored raft or pontoon, tied up to a jetty, wharf or breakwater, berthed in a marina, secured to another vessel or one of the things mentioned above, or connected up to something such as a crane, slipway cradle or trailer winch.
Determining who is owner of vessel
• A person who is registered (with or by Marine and Safety Authority Tasmania (MAST)) as the owner.
• A joint owner of a vessel, the charterer, lessee or hirer of a vessel, or a person who has a right or obligation to exercise or perform any powers or functions of an owner.
• A person who publicly represents that he or she has the right or obligation to exercise or perform those powers or functions.
• A person who is a director or other person concerned with the management of a body corporate that owns a vessel.
A person does not cease to be an owner of a vessel if the vessel is secured under a mortgage, bill of sale, or other form of security, or if is chartered, leased or hired by another person.
Determining who is in charge of vessel
Any one of the following persons are taken to be in charge of a vessel at a particular time:
• A person who is the only person, or only adult aboard the vessel.
• A person who purports by word or deed, and without contradiction by any other person aboard, to be in charge of the vessel.
• If the other persons aboard the vessel or a majority of them, acknowledge by word or deed, that the person is in charge of the vessel.
• A person who, of all the persons aboard the vessel, has ultimate command of the vessels movements.
• In relation to an owner of a vessel who was aboard the vessel, and qualified by a mariner’s certificate to be in charge of or otherwise operate the vessel, it is presumed, unless the person on the balance of probabilities establishes otherwise, that he or she had ultimate command of the vessel’s movements at the particular time.
This section applies whether or not at the particular time, the vessel is underway or the person is actually commanding the vessel’s movements.
When does the Act apply to vessels?
The Act applies (unless the contrary intention appears) to vessels that are underway or those involved in maritime accidents. A vessel is taken to be underway if it is not secured.
• A vessel is underway if it is drifting (with or without sea anchor);
• moving otherwise than under its own power; or
• temporarily stranded, and not secured.
A vessel “at anchor” is not underway, and therefore the Act does not apply.
A vessel drifting with its “motor off” is “underway”, and therefore the Act applies.
A police officer may exercise his or her powers where the vessel is not underway, in circumstances where acts or omissions occurred, or may have occurred while the vessel was underway, or if acts or omissions would or would be likely to occur if the vessel were to get underway.
Defences
The following defences have been incorporated into the legislation.
• If there was an emergency threatening the safety of the vessel or persons aboard the vessel, and the defendant was required to move the vessel.
• In relation to non-commercial vessels, if the defendant establishes that at the time of the offence, another person had overall control of the vessel’s means of steering and propulsion, and that other person was an adult who was competent to exercise that control and that other person did not have more than the permitted concentration of alcohol in his or her breath or blood.
• In relation to owners and persons in charge of vessels, if the defendant is able to establish that they did not know and could not reasonably have been expected to know, that the person caused or allowed to operate the commercial vessel had alcohol in his or her breath or blood, or in the case of a non commercial vessel, had more than the permitted concentration in his or her breath or blood.
Enforcement of alcohol restrictions
Random Testing
The Act provides for the random testing of a person who is operating or has just ceased operating a vessel.
Suspicion Alcohol is Present
Testing/analysis of a person who is operating or has just ceased operating a vessel, where it is suspected that the person has alcohol in their breath or blood.
Maritime Accident
The Act also provides for the testing/analysis/blood sampling of all persons, who a police officer reasonably suspects was on board a vessel which was involved in a maritime accident. This provision will assist where police are unable to immediately ascertain who the operator was at the time of the accident.
Fail / Refuse
The Act contains other offence provisions similar to those contained in the Road Safety (Alcohol and Drugs) Act 1970. These include the offences of failing or refusing to submit to procedures and directions of a police officer, and doing something to alter the concentration of alcohol in the person’s blood, before they have submitted to the procedure.
------ Media Release from the Minster ------
21 December 2006
DAVID LLEWELLYN
Minister for Police and Emergency Management
ALCOHOL AND BOATS DON’T MIX
Minister for Police and Emergency Management, David Llewellyn today said the State Government’s new ‘Marine Safety (Misuse of Alcohol)’ legislation will officially become law on Saturday the 23rd of December 2006.
The Marine Safety (Misuse of Alcohol) Act received Royal Assent earlier this week, and the Regulations to support the Act approved by the Executive Council.
Mr Llewellyn said the tough new measures will go a long way to ensuring that people who use the water for recreation, sport, pleasure and for an income will be safe.
“Tasmania Police will have the authority to test vessel operators for their alcohol concentration, charge offenders if they exceed the prescribe limits and if necessary direct operators to not to use their vessels due to their insobriety.
“This legislation sends a clear message to that small percentage of irresponsible members of the community that their behaviour in combining excessive alcohol use and vessels is both unacceptable, dangerous and has dramatic consequences.”
“Alcohol consumption is believed to lead to diminished judgment, slower reaction in response times, reduced depth perception, reduced night vision and focus, and accelerated onset of hypothermia if a person who has consumed alcohol falls into the water.”
The permitted breath alcohol limits are:
• Commercial Vessel Operators – 0.00
• Recreational Vessel Operators – 0.05
• Fishing Vessel Operators – 0.05
The key provisions of the legislation are:
• a prohibition on operating a commercial vessel (which includes charter and fish farm vessels) if a person has any alcohol in their breath or blood;
• a prohibition on operating any other vessel, if a person has a breath or blood alcohol concentration exceeding 0.05 grams of alcohol;
• a prohibition on an owner or person in charge of a commercial vessel, causing or allowing another person who has alcohol in his or her breath or blood, to operate that commercial vessel;
• a prohibition on an owner or person in charge of a non-commercial vessel, causing or allowing a person who has a breath or blood alcohol concentration exceeding 0.05 grams of alcohol, to operate that vessel;
• permitting the random testing of a person who is operating or has just ceased operating a vessel;
• permitting the testing/analysis of a person who is operating or has just ceased operating a vessel, where it is suspected that the person has alcohol in their breath or blood;
• permitting the testing/analysis/blood sampling of any person, who a police officer reasonably suspects was on board a vessel which was involved in a maritime accident;
• the legislation applies to all vessels (including yachts) that are, wholly or partly propelled, or designed or intended to be wholly or partly propelled by an engine. The engine need not be installed, it is sufficient if it is aboard the vessel;
• the legislation also provides that other types of vessels may be prescribed in regulations, at this point of time yachts over 6 meters in length;
• the sanctions provided for in the legislation include fine, imprisonment and disqualification from operating a vessel;
• a person who is disqualified from operating a vessel may apply for a restricted mariner’s certificate;
• police are provided with the authority to take certain action for the purposes of enforcing the Act. This includes, directing a person not to operate a vessel, and if no other qualified person is available, police may take steps to remove the vessel and persons aboard to a place of safety, or temporarily prevent its further operation.
“Most other Australian states also have comprehensive marine safety legislation which prohibits a person from operating a vessel, whilst alcohol is present in their body above a prescribed concentration.
“A recent situation in Sydney harbour highlighted the fact that alcohol and boats do not mix, where a large recreational vessel went aground near the Prime Ministers residence, the operator allegedly under the influence of alcohol.”
Brochures outlining the provisions of the legislation are being distributed by Tasmania Police and also available through the Marine and Safety Authority and Service Tasmania outlets.
The legislation is available on line at http://www.police.tas.gov.au or by contacting Tasmania Police on 62 302600.
Posted by The Skipper on Thu, January 11, 2007 at 07:11 AM
