This table of maximum penalties is populated using Lawcodes data. For more information, see Changes to Specific Penalties and Orders at the end of the introduction.

Jurisdiction

Section 127(1): Proceedings for an offence against this Act or the regulations are to be disposed of summarily before the Local Court or the Supreme Court in its summary jurisdiction.

Section 127(2): The maximum monetary penalty that the Local Court may impose is 100 pu, despite any higher maximum monetary penalty provided in respect of the offence.

Time for commencement

Section 128: Proceedings for an offence against the Act or regulations may be commenced not later than 2 yrs after the date of the offence, notwithstanding the provisions of the Criminal Procedure Act 1986.

Drugs and alcohol

The Act provides a scheme for regulating drugs and alcohol when “operating” a vessel that is substantially similar to that provided under the road transport legislation. This includes provisions for sampling (blood/urine, etc) and for certificate evidence, which are found in Sch 1 of the Act.

Part 3 Boating safety — alcohol and other drug use

Section 20: In Pt 3 and in Sch 1 “breath analysing instrument”, “breath test” and “drug” have the same meaning as in the Road Transport Act 2013.

Section 20(3): An offence against Pt 3 or Sch 1 is a second or subsequent offence only if, within the period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence.

Prescribed concentrations of alcohol

Section 22 provides that in Pt 3 and Sch 1:

The term “operate” a vessel (s 20), has a wide definition, and includes being towed, acting as observer or supervising a juvenile.

Note also s 21(2) which provides that the vessel must be “underway” (that is, not moored, berthed or at anchor). “Underway” means not at anchor, not made fast to the shore and not aground: cl 3 Marine Safety Regulation 2016.

Under 18 years of age

Novice range and special range both apply to any person under the age of 18 yrs operating a vessel: s 24. Accordingly, an offence of novice range is applicable to a person under 18 yrs who returns a reading of zero to 0.02, and an offence of special range is applicable to a person under 18 yrs who returns a reading of 0.02 to 0.05.

Commercial purpose

Section 4 of the Act defines “commercial purpose” as a purpose for which a vessel is used that results in the vessel being a commercial vessel. “Commercial vessel” has the same meaning as “domestic commercial vessel” in the National law. (Note: Pt 1A of the Act provides for the adoption of Commonwealth domestic commercial vessel national law in respect to marine safety in relation to domestic commercial vessels in NSW).

It is an offence to operate a vessel for commercial purposes while there is present the special range PCA: s 24(2).

Section 24(6) provides for alternative verdicts to be entered where the evidence before the court is of a lower reading (less serious nature) than originally charged, and where an offence is available for the lower reading. (See s 24(7) for a categorisation of “less serious nature” offences.)

Section 24(9) provides a defence to the charge of PCA in the novice range where the PCA reading was not caused by the consumption of an alcoholic beverage or substance.

Cancellation and suspension — section 28A

Section 28A(1)(a) provides the court with the power to cancel or suspend the licence upon conviction for an offence under Pt 3. Section 135A deals with national licences.

Section 28A(1)(b) gives the court the discretion to impose a disqualification “for a period specified by the court”.

Section 28A(2) provides for an automatic disqualification periods of between 3 and 12 months for offences involving alcohol or drugs if during the period of 5 years before the conviction the person had not been convicted of any other major offence. If during the period of 5 years before the conviction the person has been convicted of any other major offence, automatic disqualification periods of between 6 months to 2 years apply. However, courts are not bound by these periods and may specify shorter periods: s 28A(3).

“Major offence” does not include previous road transport PCA offences or other motor vehicle offences, which, notwithstanding they may be of a similar nature.

Disqualification is of the convicted person’s “marine safety licence”, which is a licence issued under the Act (for example, a boat licence or registration, see s 29). There is no power following conviction for a marine PCA to penalise a drivers licence or other licence issued under the road transport legislation.

Marine Safety Regulation 2016 No 308