2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR ECONOMIC DEVELOPMENT AND MAJOR PROJECTS
Ports Management (Repeals and Related and Consequential Amendments) Bill 2015
SERIAL NO. 113
EXPLANATORY STATEMENT
GENERAL OUTLINE
The Ports Management (Related and Consequential Amendments) Bill 2015:
(a)	makes repeals and related and consequential amendments to a number of Acts and Regulations that are related to or impacted by the Ports Management Bill; and 
(b)	provides for the conversion of all offences in the Marine Act so that they comply with the principles of criminal responsibility in Part IIAA of the Criminal Code.

NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill.  The Bill when passed, may be cited as the Ports Management (Repeals and Related and Consequential Amendments) Act 2015. 
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence.  The Act will commence on a day fixed by the Administrator by Gazette notice.
Part 2	Amendment of Litter Act
Clause 3.	Act amended
This clause provides that this Part amends the Litter Act. 
Clause 4.		Section 3 amended
This clause amends section 3 by omitting the reference to ‘Darwin Port Corporation’. 
Clause 5.		Section 8 amended
This clause amends section 8(2)(b) by omitting the reference to ‘Darwin Port Authority’ and replacing it with a reference to ‘boat registration authority’. The clause also defines the term ‘boat registration authority’.
Clause 6.		Section 9A amended
This clause omits section 9A(8)(b) relating to moneys paid pursuant to the issue and service of notices by an officer employed by the Darwin Port Corporation, consistent with the amendment made under clause 4 above. 
Clause 7.		Section 11A amended
This clause amends section 11A(2)(b) by omitting the reference to ‘Darwin Port Authority’. 
Part 3			Amendment of Marine Act
Clause 8.		Act amended
This clause provides that this Part amends the Marine Act.
Clause 9.		Section 4 amended
This clause amends section 4 of the Marine Act by omitting subsections (3) and (4), consistent with the repeal of Part 7 (Pilotage) of the Act under clause 184 of the Ports Management Bill. 
Clause 10.		Section 7 amended
This clause amends section 7 of the Marine Act by omitting the definition of ‘marine incident’ and inserting a new definition. 

Clause 11.	Section 7A inserted
This clause inserts a new section 7A.  This is a standard clause which provides that Part IIAA of the Criminal Code applies to an offence against the Marine Act. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences and deals with burden of proof.
Clause 12.	Section 8 amended
This clause omits section 8(7) of the Marine Act which provides for the offence of hindering a shipping inspector.
The offence is replaced by a new general obstruction offence in new section 188D(1) of the Marine Act (refer clause 39 below).
Clause 13.		Section 97 amended
This clause amends the offences contained in section 97 of the Marine Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 97(1) provides for the offence of sending an unsafe vessel to sea and section 97(2) provides for the offence of taking an unsafe vessel to sea. An offence under section 97(2) can only be committed by the master of a vessel.
In accordance with section 43AM of the Criminal Code, the fault element for sections 97(1)(a) and 97(2)(a) is intention. As sections 97(1)(b) and 97(2)(b) specifically reference knowledge, this is the fault element.
Clause 14.		Section 102 amended
This clause amends the offence contained in section 102(3) of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 102(3) provides for the offence of contravening a direction given in relation to hazardous goods.
In accordance with section 43AM of the Criminal Code, the fault element for sections 102(3)(a) and 102(3)(c) is recklessness and the fault element for section 102(3)(b) is intention.
Clause 15.		Section 105 amended
This clause amends the offence contained in section 105 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 105 provides for the offence of contravening a direction given in relation to dangerous goods. This is a strict liability offence, with a reasonable excuse defence.
Clause 16.		Section 106 amended
This clause amends the offence contained in section 106 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 106 provides for the offence of contravening a determination made in relation to packing, marking and carriage of dangerous goods. This is a strict liability offence, with a reasonable excuse defence.
Clause 17.		Section 107 replaced
This clause repeals section 107 of the Marine Act and inserts a new provision which more closely reflects the equivalent forfeiture of dangerous goods provision under the Ports Management Bill. 
Clause 18.		Section 109 replaced
This clause amends the offence contained in section 109 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 109 provides for an offence in relation to the failure to tend to certain tasks after a collision.  An offence under section 109 can only be committed by the master of a vessel.
As section 109(1)(b) specifically references knowledge, this is the fault element.  Strict liability applies to sections 109(1)(a) and (c), with a reasonable excuse defence.

Clause 19.		Section 110 amended
This clause amends the offences contained in section 110 of the Marine Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 110(1) provides for the offence of contravening the Regulations regarding collisions.  Amended sections 110(2) and 110(3) provide for the offence of failing to provide appropriate means of exhibiting lights, shapes and signals required to prevent collisions, with the offence under section 110(3) specifically relating to the master of a vessel. Each of the offences under section 110 are strict liability offences, with a reasonable excuse defence.
Clause 20.		Section 112 replaced
This clause amends the offences contained in section 112 of the Marine Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 112(1) provides for the offence of setting off a distress signal without reasonable cause.  This is a strict liability offence.
Amended section 112(3) provides for the offence of making a signal which may be confused with a distress signal.  In accordance with section 43AM of the Criminal Code, the fault element for section 112(3)(a) is intention and the fault element for section 112(3)(b) is recklessness.
Clause 21.		Section 115 amended
This clause amends the offence contained in section 115 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 115 provides for an offence in relation to failing to communicate relevant information regarding navigational hazards. This is a strict liability offence, with a reasonable excuse defence.

Clause 22.	Sections 115A and 115B replaced
This clause amends the offences contained in sections 115A and 115B of the Marine Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 115A provides for the offence of operating a vessel in a manner which is likely to obstruct or create a hazard to the safe passage of another vessel.  This offence can only be committed by an owner or master of a vessel.
In accordance with section 43AM of the Criminal Code, the fault element for section 115A(a) is intention and the fault element for section 115A(b) is recklessness.
Amended section 115B provides for the offence of obstructing, hindering or endangering the safe passage of another vessel or person.
In accordance with section 43AM of the Criminal Code, the fault element for section 115B(a) is intention and the fault element for section 115B(b) is recklessness.
Clause 23.		Section 115D amended
This clause amends the offence contained in section 115D of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 115D provides for the offence of contravening a direction given in relation to a wrecked vessel. This is a strict liability offence, with a reasonable excuse defence.
Clause 24.		Section 117 inserted
This clause provides for an offence of failing to report a marine incident to the Director as soon as practicable after it occurs and in any event not later than 4pm on the next business day. This is a strict liability offence, with a reasonable excuse defence. This offence can only be committed by the master of a vessel. 
Clause 25.		Section 120 amended
This clause amends the offence contained in section 120 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 120(2) provides for the offence of providing misleading information in response to a formal requirement and section 120(2A) provides for the offence of producing a misleading document or certificate in response to a formal requirement.
In accordance with section 43AM of the Criminal Code, the fault element for sections 120(2)(b) and 120(2A)(b) is intention.  Strict liability applies to sections 120(2)(a) and 120(2A)(a). As sections 120(2)(c) and 120(2A)(c) specifically reference knowledge, this is the fault element.
Section 120(2C) clarifies that subsection (2A) does not apply if the person draws the misleading aspect of the document or certificate to the attention of the person to whom it is produced when producing it and, as far as reasonably able, gives the information necessary to remedy the misleading aspect of the document or certificate.  
Section 120(2D) provides for the offence of refusing to answer a question or produce a document or certificate.  This is a strict liability offence, with a reasonable excuse defence.
Clause 26.		Section 127 amended
This clause amends the offence contained in section 127 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 127 provides for the offence of obstructing the machinery, equipment or fittings of a vessel.
In accordance with section 43AM of the Criminal Code, the fault element for section 127(1)(a) is intention and the fault element for section 127(1)(b) is recklessness.
Omitted section 127(1)(b) which provided for the offence of obstructing a crew member in the navigation, management or operation of a vessel is replaced by new section 188D(2) of the Marine Act (refer clause 39 below).
Clause 27.		Section 128 amended
This clause amends the offence contained in section 128 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 128 provides for the offence of contravening a direction made in relation to the safety and health of passengers. An offence under section 128 can only be committed by the master of a vessel. This is a strict liability offence, with a reasonable excuse defence.
Clause 28.		Section 135 amended
This clause amends the offence contained in section 135 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 135 provides for the offence of contravening a requirement to provide information. This is a strict liability offence, with a reasonable excuse defence.
Clause 29.		Section 139 amended
This clause amends the offence contained in section 139 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 139 provides for the offence of contravening a requirement to permit access or provide information to a shipping inspector.  This is a strict liability offence, with a reasonable excuse defence.
Clause 30.		Section 140 replaced
This clause amends the offences contained in section 140 of the Marine Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 140(1) provides for the offence of carrying on a declared service without a licence.  In accordance with section 43AM of the Criminal Code, the fault element for section 140(1)(a) is intention and the fault element for section 140(1)(b) is recklessness.
Amended section 140(2) provides an offence for a contravention of licence conditions and section 140(3) provides for the offence of permitting a vessel to be used in a way that contravenes a licence condition.  The offences contained in sections 140(2) and (3) are strict liability offences, with a reasonable excuse defence.
Clause 31.		Section 141 amended
This clause amends section 141 of the Marine Act by removing the Local Court as the jurisdiction responsible for hearing challenges to licensing decisions made by the Director under Part 5, and instead conferring jurisdiction on the Northern Territory Civil and Administrative Appeals Tribunal to do so. 
Clause 32		Section 142 replaced
This clause amends section 142 of the Marine Act, consistent with the amendment made under clause 31 above. 
Amended section 142 clarifies the status of existing licences, pending the outcome of a review of a decision of the Director by the Northern Territory Civil and Administrative Appeals Tribunal, or reconsideration by the Director if section 142(2) applies.  
Clause 33.		Section 148 amended
This clause amends the offence contained in section 148 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 148 provides for the offence of establishing a private aid without approval. This is a strict liability offence, with a reasonable excuse defence.
Clause 34.		Section 149 amended
This clause amends the offence contained in section 149 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 149 provides for the offence of contravening a requirement made in relation to a light or aid. This is a strict liability offence, with a reasonable excuse defence.
Clause 35.		Section 152 amended
This clause amends the offence contained in section 152 of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 152 provides for the offence of mooring or attaching a vessel to an aid. This is a strict liability offence, with a reasonable excuse defence.
Clause 36.		Sections 153, 154 and 155 replaced
This clause repeals sections 153, 154 and 155 of the Marine Act.
Section 153, which provides for the offence of obstructing or hindering an authorised person, is replaced by a new general obstruction offence in new section 188D(1) of the Marine Act (refer clause 39 below).
The offences contained in section 154 of the Marine Act are amended so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 154 provides for various offences in relation to aids including damaging, obstructing and being in or on an aid. The offences contained in sections 154(1), 154(2) and 154(3) are strict liability offences, with a reasonable excuse defence.
Clause 37.		Section 188A replaced
This clause amends the offence contained in section 188A of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 188A provides for the offence of erecting a jetty, wharf, pontoon etc, or mooring a floating structure or mooring buoy to the sea floor, lake etc, in or on Northern Territory waters, without approval of the Director.  This is a strict liability offence, with a reasonable excuse defence.
Clause 38.		Section 188B amended
This clause amends the offence contained in section 188B of the Marine Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 188B provides for the offence of being in closed waters contrary to a notice issued by the Director. This is a strict liability offence, with a reasonable excuse defence.

Clause 39.		Sections 188C and 188D inserted
This clause inserts new sections 188C and 188D into the Marine Act. 
Section 188C(1) confers power on the Minister to close, by written notice, any specified area of Northern Territory waters to shipping for a period specified in the notice. Sections 188C(1)(a) to (d) specify the purposes for which the Minister may exercise this power.  
Section 188C(2) requires the Minister to publicise, as far as practicable, the proposed closure in such manner as the Minister thinks fit. 
Section 188C(3) provides for the offence of being in closed waters contrary to a notice issued by the Minister. This is a strict liability offence, with a reasonable excuse defence.
Section 188D(1) provides for a new general offence of obstructing an officer acting in an official capacity. This new general offence replaces the specific obstruction offences in sections 8(7) and 153 of the Marine Act. Section 188D(2) provides for a new offence of obstructing a crew member who is engaged in the navigation, management or operation of a vessel. This new offence replaces the obstruction of crew member offence in section 127(1) of the Marine Act.
In accordance with section 43AM of the Criminal Code, the fault element for new sections 188D(1)(a) and (2)(a) is intention. Strict liability applies to new sections 188D(1)(b) and (2)(b). As new sections 188D(1)(c) and (1)(d) specifically reference knowledge, this is the fault element.
Clause 40.		Sections 191AA and 191A repealed
This clause repeals sections 191AA and 191A of the Marine Act as each offence under the Act prescribes a penalty and Part IIAA of the Criminal Code applies to offences against both the Act and the Regulations.  
Clause 41.		Part 10, Division 1 repealed
This clause repeals Part 10, Division 1 of the Marine Act which provided transitional provisions for the Darwin Port Corporation Amendment Act 2011. The provisions are rendered redundant by the Ports Management Bill which Part 7 (Pilotage) of this Act, and confers jurisdiction on the Northern Territory Civil and Administrative Tribunal for matters formerly heard and determined by the Marine Appeals Tribunal.
Clause 42.		Part 10, Division 3 inserted
The clause inserts a new Part 10, Division 3 into the Marine Act. Section 215 provides for the Local Court to continue to hear and determine an appeal in accordance with the former Act if, before the commencement of amendments made by this Bill, a person had lodged an appeal with the Local Court against a decision of the Director, but the Local Court had not determined the appeal. 
Section 216 provides that a person may appeal to the Local Court in accordance with the former Act if, immediately before the commencement of amendments made by this Bill, the person had a right to appeal to the Local Court against a decision of the Director but had not yet exercised that right. In such cases, the Local Court must hear and determine the appeal in accordance with the former Act. 
Part 4	Amendment of Ports Management Act
Clause 43.		Act amended
This clause provides that this Part amends the Ports Management Act.
Clause 44.		Section 3 amended
This clause amends section 3 of the Ports Management Act by omitting the definitions of ‘buoy’ and ‘Port of Darwin’ and inserting a new definition of ‘mooring buoy’ and ‘Port of Darwin’.
Clause 45.		Section 53 amended
This clause amends section 53 of the Marine Act which provides for the offence of erecting a jetty, wharf, pontoon etc, or mooring a floating structure or mooring buoy to the sea floor, lake etc, in or on waters within a designated port, without approval of the regional harbourmaster. The amendment aligns this offence with the equivalent offence relating to Northern Territory waters provided for under amended section 188A of the Marine Act. Clause 46.		Section 76 amended
This clause amends section 76 of the Ports Management Act by inserting a new section 76(6)(ba) which provides that regulations may provide for the medical examination of a licensed pilot to determine fitness to discharge duties. 
Clause 47.		Section 87 amended
This clause amends section 87 of the Ports Management Act to clarify that the record-keeping and reporting obligations of a pilotage services provider under subsection (1) only extend to reportable incidents involving a licensed pilot employed or engaged by the pilotage services provider, or involving a vessel of which such a pilot has pilotage charge. 
Clause 48. 		Section 96 amended
This clause is amended to provide that a port operator of a designated port may only approve the establishment, alteration or removal of an aid with the prior written approval of the regional harbourmaster for the designated port.
Clause 51. 		Section 108 amended
This section omits various references to ‘buoy’ within section 108 of the Ports Management Act and replaces them with references to ‘mooring buoy’.
Clause 50. 		Section 127 amended
This clause amends section 127 of the Ports Management Act by inserting a new subsection (1A) to clarify that the Regulator has the discretion to determine any matters about which guidelines should be issued to assist the Regulator to determine whether a private port operator is complying with its access policy.
Clause 51.		Section 131 amended
This clause amends section 131 of the Ports Management Act by inserting a new subsection (2A) which provides that the regulations may require the Regulator to send a copy of a draft price determination to specified persons inviting submissions on the draft for consideration by the Regulator. The regulations may also require the Regulator to send a copy of a price determination to specified persons and to publish the determination on the Regulator’s website. It also includes a new subsection (4A) which provides that a price determination must specify its expiry date.
Clause 52.		Section 147 amended
This clause amends the section 147(1)(c) reference to the Darwin Port Corporation Act given the intention to repeal that Act. 
Clause 53.		Section 154 amended
This clause amends section 154 of the Ports Management Act by inserting a new subsection which provides that a regulation may prescribe fees payable under this Act or provide for an offence against a regulation to be an offence of strict or absolute liability. 
Clause 54.		Section 158 amended
This clause amends the section 158(1) reference to the Darwin Port Corporation Act given the intention to repeal that Act. 
Clause 55.		Section 159 amended
This clause amends the section 159(1) reference to the Darwin Port Corporation Act given the intention to repeal that Act. 
Clause 56.		Section 162 amended
This clause amends the section 162(1) reference to the Darwin Port Corporation Act given the intention to repeal that Act. 
Clause 57.		Schedule 1 amended
This clause amends the schedule to expand the review of any decision made under section 53(1) to include conditions imposed on an approval. It also makes minor amendments to the wording of Schedule 1, insofar as it relates to section 53(1), to ensure consistency with the wording of that section. 
Part 5			Amendment of Marine (General) Regulations
Clause 58.		Regulations amended
This clause provides that this Part amends the Marine (General) Regulations.

Clause 59.		Regulation 16 amended
This clause amends Regulation 16 of the Marine (General) Regulations by omitting the current Regulation 16(1)(c) and 16(2) and renumbering accordingly.
Regulations 16(1)(a) to (c) are replaced by section 188A of the Marine Act (refer clause 37 above). 
Clause 60.		Regulation 23 repealed
This clause repeals Regulation 23 of the Marine (General) Regulations which prescribes the Darwin Port Corporation as the operator of the Coast Radio Darwin. 
Clause 61.		Regulation 24 amended
This clause amends Regulation 24 of the Marine (General) Regulations to insert a new subsection (3) which clarifies that the regulation does not apply to a vessel within a designated port. 
Part 6	Amendment of Work Health and Safety (National Uniform Legislation) Regulations
Clause 62.		Regulations amended
This clause provides that this Part amends the Work Health and Safety (National Uniform Legislation) Regulations.
Clause 63.		Regulation 530 amended
This clause omits Regulation 530(2) of the Work Health and Safety (National Uniform Legislation) Regulations which exempted the Port of Darwin from the legislative requirement to register and be licensed as a major hazard facility. 
Clause 64.		Regulation 532 amended
This clause amends Regulation 532 of the Work Health and Safety (National Uniform Legislation) Regulations by inserting a new subsection (4) which provides that Schedule 15 chemicals in transit at a designated port are not to be considered in determining whether the port is a facility or a major hazard facility. 

Part 7	Amendment of other laws
Clause 65.		Laws amended
This clause provides that Schedule 1 amends the laws mentioned in it.
Part 8			Repeals
Clause 66.		Regulations repealed
This clause provides that the Regulations specified in Schedule 2 are repealed. 
Part 9	Expiry of Act
Clause 67.		Expiry of Act
This clause provides that this Act expires on the day after it commences.