Harbors and Navigation Act 1993

This

Act may be cited as the Harbors and Navigation Act 1993.

The objects of this Act are—

to provide for the efficient and effective administration and management of South Australian harbors and harbor facilities for the purpose of maximising their use and promoting trade; and

to ensure that efficient and reliable cargo transfer facilities are established and maintained; and

to promote the safe, orderly and efficient movement of shipping within harbors; and

to promote the economic use and the proper commercial exploitation of harbors and harbor facilities; and

to provide for the safe navigation of vessels in South Australian waters; and

to provide for the safe use of South Australian waters for recreational and other aquatic activities; and

insofar as this Act applies to the Adelaide Dolphin Sanctuary, to further the objects and objectives of the Adelaide

Dolphin Sanctuary Act 2005;

and

insofar as this Act applies to a marine park, to further the objects of the

Marine

Parks Act 2007.

In this Act, unless the contrary intention appears—

Adelaide

Dolphin Sanctuary has the same meaning as in the Adelaide

Dolphin Sanctuary Act 2005;

adjacent land means—

land extending from the low water mark on the seashore to the nearest road or section boundary, or to a distance of 50 metres from high water mark (whichever is the lesser distance); or

land extending from the edge of any other navigable waterway or body of water in the State to the nearest road or section boundary or for a distance of 50 metres (whichever is the lesser), (but does not include land vested in fee simple in any person other than the Minister or land withdrawn from the Minister under the transitional provisions);

alcotest means a test by means of apparatus approved for the purpose of conducting alcotests under the Road

Traffic Act 1961;

analyst means a person who is an analyst for the purposes of the Road

Traffic Act 1961;

approved blood test kit means a kit of a kind declared under the Road

Traffic Act 1961 to be an approved blood test kit;

authorised person means a person appointed under Part

2 or a police officer;

boat operator's licence means a boat operator's licence issued under Part

7;

breath analysing instrument means apparatus of a kind approved as a breath analysing instrument under the Road

Traffic Act 1961;

breath analysis means an analysis of breath by means of a breath analysing instrument;

category

1 offence means an offence against section 70(2) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood;

category

2 offence means an offence against section 70(2) involving a concentration of alcohol of not less than .08 grams but less than .15 grams in 100 millilitres of blood;

category

3 offence means an offence against section 70(2) involving a concentration of alcohol of not less than .15 grams in

100 millilitres of blood;

CE means the chief executive of the Department;

commercial vessel means—

a domestic commercial vessel; and

a vessel used for commercial, governmental or research purposes; and

any other vessel of a class declared by the regulations to be included in the ambit of this definition, but does not include a vessel, or a vessel of a class, declared by the regulations to be excluded from the ambit of this definition;

crew, of a vessel, includes—

the operator of the vessel; and

any other person, or person of a class, declared by the regulations to be a member of the vessel's crew, but does not include a person, or a person of a class, declared by the regulations to be excluded from the ambit of this definition;

department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

domestic commercial vessel has the same meaning as in the Marine

Safety (Domestic Commercial Vessel) National Law;

drug screening test means a test by means of an apparatus of a kind approved under the

Road

Traffic Act 1961 for the purpose of conducting drug screening tests;

excluded vessel means an excluded vessel within the meaning of section 6A;

expiable offence means an offence against this Act declared by regulation to be an expiable offence;

harbor means—

any of the harbors mentioned in Schedule

1 (unless declared by regulation not to be a harbor); or

a place—

at which facilities exist for the loading or mooring of vessels or at which such facilities might be conveniently established; and

declared by regulation to be a harbor;

hospital means an institution declared under the Road

Traffic Act 1961 to be a hospital for the purposes of section 47I of that Act;

interest in land means—

any legal or equitable estate or interest in the land; or

any easement, right, power, or privilege in, under, over, affecting, or in connection with, the land;

jurisdiction means—

the

State (and, in particular, the navigable waters within its limits);

and

so much of the territorial sea of Australia as is adjacent to the State;

and

any other navigable waters declared by regulation to be within the jurisdiction, but does not include navigable waters declared by regulation not to be within the jurisdiction;

land includes an interest in land;

marine park has the same meaning as in the Marine

Parks Act 2007;

master means the person in charge of a commercial vessel but does not include a licensed pilot acting as such;

medical practitioner means a person registered under the Health

Practitioner Regulation National Law to practise in the medical profession (other than as a student);

misconduct includes negligence;

navigation of a vessel includes any movement of the vessel from place to place whether or not the vessel moves or is moved under its own power;

navigational aid means—

a lighthouse, beacon, buoy, or other mark or structure (whether equipped with a light or not) intended to be an aid to navigation; or

a radio beacon or other device intended to be an aid to navigation;

operator, of a vessel, means—

in the case of a domestic commercial vessel or any other commercial vessel—the master of the vessel; or

in the case of any other vessel—the person in charge of the vessel while the vessel is underway;

oral fluid includes saliva;

oral fluid analysis means the analysis of a person's oral fluid to determine whether a prescribed drug is present in the oral fluid;

owner, of a vessel, includes—

in the case of a registered vessel—a person registered on the register as the owner of the vessel; and

in the case of a commercial vessel—a charterer of the vessel or an agent of the charterer and a person who takes the vessel on hire;

personal watercraft means a device that—

is propelled by a motor; and

has a fully enclosed hull; and

is designed not to retain water if capsized; and

is designed to be operated by a person who sits astride, stands, or kneels on the device, and includes the device commonly referred to as a jet ski;

pilot means a person, who although not a member of a vessel's crew, temporarily takes control (subject however to the master's overriding authority) of the vessel's navigation;

port means land and waters (which must comprise or include the whole or some of the land and waters constituting a harbor) constituted as a port by the regulations;

port management officer means—

a port management officer appointed under section 29;

or

an authorised person;

port operator means—

a person authorised by a port operating agreement to operate a port; or

if there is no such person—the Minister;

prescribed alcohol or drug offence means an offence against Part

10 Division 4;

prescribed circumstances—a requirement to submit to an alcotest or breath analysis under section 71, or a direction to stop a vessel for the purpose of making such a requirement, is made or given in prescribed circumstances if the authorised person who makes the requirement or gives the direction believes on reasonable grounds that the person of whom the requirement is, or is to be, made has, within the preceding 8 hours—

committed an offence of a prescribed class; or

behaved in a manner that indicates that the person's ability to do the following is impaired:

operate a vessel; or

as a member of the crew of a vessel, engage in duties affecting the safe navigation, operation or use of the vessel; or

been involved in an accident as—

the operator of a vessel; or

a member of the crew of a vessel who was, or ought to have been, engaged in duties affecting the safe navigation, operation or use of the vessel;

prescribed concentration of alcohol means a concentration of .05 grams or more in 100 millilitres of blood;

prescribed drug means a substance declared under the Road

Traffic Act 1961 to be a prescribed drug;

registered nurse means a person registered under the Health

Practitioner Regulation National Law—

to practise in the nursing profession as a nurse (other than as a student); and

in the registered nurses division of that profession;

subjacent land means land underlying navigable waters within the jurisdiction;

speed, in relation to a vessel, means speed with reference to a stationary horizontal plane (as distinct from speed through water which may itself be in motion);

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

vessel means—

a craft for use, or that is capable of being used, in navigation by water, however propelled or moved (including an air cushion vehicle, a barge, a lighter, a submersible, a ferry in chains and a wing in ground effect craft); and

a surf board, wind surf board, personal watercraft, water skis or other similar device on which a person rides through water; or

a structure that is designed to float in water and is used for commercial, industrial or scientific purposes; and

any other thing declared by the regulations to be included in the ambit of this definition, but does not include a craft or other thing declared by the regulations not to be included in the ambit of this definition;

wreck includes an abandoned vessel.

For the purposes of this Act, a person is taken to operate a vessel if that person—

rides on a surfboard or water skis or other similar device; or

is towed by a vessel.

For the purposes of this Act, the length of a vessel is to be determined in accordance with the regulations.

This

Act binds the Crown not only in right of South Australia but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence.

This

Act applies both within and outside the jurisdiction.

This

Act applies outside the jurisdiction to the full extent of the extraterritorial power of the Parliament.

Other than where a provision of this Act expressly provides otherwise, the following provisions of this Act do not apply to, or in relation to, an excluded vessel:

a provision of Part 7;

a provision of Part

9;

a provision of Part 10

Divisions 1 and 2;

a provision of Part 11;

a provision of Part 12;

a provision of Part 13.

A provision of this Act not referred to in subsection (1) applies to, or in relation to, an excluded vessel.

In this section—

excluded vessel means—

a vessel to which the Marine

Safety (Domestic Commercial Vessel) National Law applies; and

a vessel to which the application of the Marine

Safety (Domestic Commercial Vessel) National Law is extended pursuant to the Marine

Act 2013;

and

any other vessel of a class of vessels declared by the regulations to be included in the ambit of this section.

The

Minister is a corporation sole.

The

Minister has in the Minister's corporate capacity all the powers of a natural person.

A document apparently bearing the common seal of the Minister will be presumed, in the absence of contrary evidence, to have been duly executed by the Minister.

The

CE is, subject to the Minister's control and direction, responsible for carrying this Act into effect.

The

CE must, on or before 31 October in each year, report on the administration of this Act during the preceding financial year.

The

Minister must, within 12 sitting days after receiving the report, cause copies to be laid before both Houses of Parliament.

The

Minister may delegate to the CE or to any other person any of the

Minister's powers under this Act.

The

CE may delegate powers under this Act (including powers delegated to the CE by the Minister).

If a delegation under this section is expressed to be made to the person holding, or acting in, a specified office or position, the delegated powers are exercisable by any person who holds, or is acting in, that position when an occasion for exercising the powers arises.

A delegation under this section—

must be in writing; and

may be conditional or unconditional; and

is revocable at will; and

does not prevent the delegator from acting in any matter; and

may, if the instrument of delegation so provides, be further delegated.

The

CE may appoint suitable persons to be authorised persons for the purposes of this Act.

The

CE may, with the agreement of a port operator, appoint an officer or employee of the operator to be an authorised person in relation to the relevant port.

The

CE may, with the concurrence of a council, appoint an officer or employee of the council to be an authorised person for the purposes of this Act.

An appointment under this section may be subject to conditions, including a condition limiting the exercise of powers by the authorised person to the enforcement of specified provisions of the

Act or to enforcement within a specified area of the State.

An authorised person appointed under this section must be issued with an identity card—

containing a photograph of the person; and

if the authorised person's authority is limited to a particular port—stating the name of the port; and

stating any conditions of appointment limiting the authorised person's authority.

If it is practicable to do so, an authorised person must, at the request of a person against whom the authorised person proposes to exercise statutory powers, produce the authorised person's identity card or, if the authorised person is a police officer, the police officer's warrant card, for inspection by that person.