Legislative Council Fifty-Fifth Parliament, First Session (55-1) 55 1 Parliament of South Australia Legislative Council published Bills Harbors and Navigation (Miscellaneous) Amendment Bill Harbors and Navigation (Miscellaneous) Amendment Bill Harbors and Navigation (Miscellaneous) Amendment Bill Second Reading Second Reading The Hon. K.J. MAHER Legislative Council Minister for Aboriginal Affairs Attorney-General Minister for Industrial Relations and Public Sector Special Minister of State The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:40): I move: That this bill be now read a second time. I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them. Leave granted. I rise to introduce the Harbors and Navigation (Miscellaneous) Amendment Bill 2025 (the Bill). The Bill makes a number of amendments to the Harbors and Navigation Act 1993 (the Act). Harbor Rules Relevant to the Minister's powers under the Act concerning the control and management of harbors in the State, the Bill inserts Division 2AA of Part 5 into the Act to create the ability for the Minister to publish harbor rules in the Government Gazette, to assist in the smooth operation of harbors around South Australia. The Minister must also make the harbor rules publicly available on a website maintained by the Minister. Harbor rules will be tailored to a particular harbor and, for example, will cover matters such as activities that may or may not be undertaken by persons or vessels, the maximum size limits for vessels, the reporting of incidents and hazards and the priority and safety of movement of vessels within a harbor. A maximum Court penalty of $10,000 is created for failure to comply with a harbor rule. As provided for in the Bill, harbor rules prevail over a council by-law. In the circumstances, the applicable council will be consulted prior to the publication of any harbor rules to minimise the possibility of any inconsistencies arising. It is not anticipated that rules will be created for all of the 33 harbors around the State, and harbors (or parts of harbors) that are subject to port operating agreements are not in scope. Harbor rules are likely to be developed particularly for harbors where ferry services operate, such as Penneshaw and Cape Jervis. This is intended to assist in the smooth operation of those services. Safety Direction The Bill inserts a new section, being section 67A Safety direction, into the Act. Similar to the Minister's powers to issue directions in an emergency, the new section creates powers for the Minister, by notice in the Government Gazette, to publish a safety direction. A safety direction will be used where appropriate to ensure the safety of the public, the protection of vessels or other property and the safety of water users and occupiers of land adjoining those waters. This is to manage situations that are not an emergency, but do involve a heightened safety risk. These notices will operate on a temporary basis and must also be publicly available on a website maintained by the Minister. The notices can impose restrictions, for example, prohibiting swimming or limiting the speed of vessels, in specified areas within the jurisdiction. It is intended for safety directions to assist in various situations, for example, to limit access to an area where remedial works are being undertaken, or to manage safe access to marine areas when events are taking place, such as regattas. Introducing the ability for the Minister to publish safety directions, placing temporary restrictions concerning activities on navigable waters in appropriate circumstances, will increase safety for the general boating public and persons undertaking aquatic activities. These changes are intended to create a consistent, effective and orderly approach to managing marine related works, events and non-emergency situations of heightened safety risk. A maximum Court penalty of $10,000 is introduced for non-compliance with a safety direction, and a safety direction will prevail over a council by-law. This is necessary to minimise any uncertainty, given a direction is addressing a situation of heightened safety risk. Declaration of harbors and ports in private ownership The Bill also provides that a harbor or port established under the Act may include areas that are wholly or partly in private ownership. This amendment seeks to clarify that a harbor may be declared by regulation and a port may be constituted by regulation where private ownership of the land or waters is included, provided the Minister has obtained the agreement of the private owner. The declaration of a harbor or port under the Act does not relate to the tenure or ownership of the land, but rather it is concerned with the regulation of the place, land and waters which fall within the declared harbor and the land and waters constituting a port. Clearance of wrecks The Bill clarifies the Minister's powers concerning wrecks in section 25 of the Act. Currently, under the Act, the Minister does not have the express ability to destroy or sink a wreck and recover the costs of doing so. The amendments make clear that if a person fails to comply with a notice issued under the section to remove a wreck, the Minister or port operator, with the Minister's approval (as applicable), may remove, destroy or sink the wreck and recover the costs of doing so as a debt from the person in default. Taking these actions would ordinarily be a matter of last resort and would likely involve circumstances where a wreck is creating a safety hazard. Where the Minister is of the opinion that a particular wreck may be of historic significance, the Minister must first consult with the Minister responsible for the Historic Shipwrecks Act 1981 prior to acting. Given the passage of time, the maximum Court penalty for failing to comply with a notice under the section has been increased from $5,000 to $10,000. Exclusions from the vesting of maritime property in the Minister Section 15 of the Act is concerned with the vesting of property in the Minister, including certain structures, such as wharves and jetties, that are situated in a harbor or on adjacent or subjacent land. The section includes that all wharves, docks, jetties and other structures that are situated in a harbor, or outside a harbor, but on adjacent or subjacent land, vest in the Minister. While some exclusions are already provided for, the Bill clarifies that the vesting provisions do not apply to wharves, docks, jetties and other structures in private ownership that were constructed after the commencement of the Act, that is 24 October 1994. Miscellaneous changes The Bill makes a number of amendments to the Act to reflect the passage of time and to facilitate the effective operation of the legislation. This includes updating superseded legislation references throughout the Act, clarification changes to the offence provisions in section 66, being powers to prohibit the use of unsafe vessels, and enhancing provisions concerning the Minister's delegation power. The Bill deletes expiation fees for offences throughout the Act. This is to enable the expiation fees for the Act offences to be set out in the regulations, which will ensure that these fees can be updated more efficiently in the future. I commend the Bill to the Chamber. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement These clauses are formal. Part 2—Amendment of Harbors and Navigation Act 1993 3—Amendment of section 10—Annual report This clause amends section 10(2) to require the Minister to cause copies of the annual report to be laid before both Houses of Parliament within 12 days after receiving it rather than the current 6 days. 4—Amendment of section 11—Delegation This amendment updates the delegation provision in accordance with modern drafting standards. 5—Amendment of section 15—Property of Crown Currently, section 15(1) sets out that certain property set out in that subsection is to be vested in the Minister. Subsection (3) lists property to which subsection (1) does not apply. This clause amends subsection (3) to insert a further category of property into the list, being all wharves, docks, jetties and other structures in private ownership that are situated in a harbor or outside a harbor but on adjacent or subjacent land, constructed after the commencement of this Act. 6—Amendment of section 18—Care, control and management of property This amendment contains a technical amendment. 7—Amendment of section 18A—By-laws This amendment updates an obsolete reference. 8—Amendment of section 20—Rateability of land This amendment updates an obsolete reference. 9—Amendment of section 25—Clearance of wrecks etc The amendments in subclause (1) and (3) update subsection (3) and add a new subsection (3a) to expand the powers of the Minister or the port operator in circumstances where a notice is given to the owner of a wreck to remove a wreck within the jurisdiction. The updated provisions allow the Minister or port operator (as the case may be) to remove the wreck or take the action specified in the notice. It also allows the Minister to sink, destroy or dispose of the wreck. The costs associated with taking such action are recoverable as a debt from the person in default. The amendment in subclause (2) increases the maximum penalty for the offence in subsection (4) from $5,000 to $10,000. Subclause (4) inserts new subsections (6), (7) and (8). Proposed subsection (6) provides that if a wreck within the jurisdiction has no owner, or the Minister cannot, despite making reasonable efforts, identify, locate or contact the owner of a wreck within the jurisdiction, the Minister may remove, destroy or sink the wreck or take any other action the Minister considers appropriate in the circumstances. Proposed subsection (7) provides that if the Minister is of the opinion that a wreck within the jurisdiction may be of historic significance, then before the Minister agrees to sink, destroy or dispose of the wreck as permitted under this section, the Minister must consult with the Minister responsible for the administration of the Historic Shipwrecks Act 1981. Proposed subsection (8) provides that a decision, act or omission of the Minister under proposed subsection (3a) or (6) does not give rise to any liability of the Minister to pay damages or compensation to any person. 10—Amendment of section 26—Licences for aquatic activities This amendment deletes the expiation fee applying in relation to the offence in section 26(2) of the Act, consequent on the proposal to set all expiation fees by regulation. 11—Insertion of Part 5 Division A1 This clause inserts a new Division into Part 5 as follows: Division A1—Declaration and constitution of harbors and ports 27A—Declaration of harbor over area in private ownership The proposed section provides that— a harbor may be declared in respect of a place, land or waters that is wholly or partly in private ownership; and no regulation declaring a harbor or part of a harbor over a place, land or waters that are wholly or partly in private ownership may be made unless the Minister has obtained the agreement of the private owner of the place, land or waters. 27B—Constitution of port comprising land or waters in private ownership The proposed section provides that— land and waters constituted as a port may comprise land or waters that are wholly or partly in private ownership; no regulation constituting a port comprising land or waters that are wholly or partly in private ownership may be made unless the Minister has obtained the agreement of the private owner of the land or waters. 12—Amendment of section 28G—Power to appoint manager This amendment updates an obsolete reference. 13—Insertion of Part 5 Division 2AA This clause inserts a new Part 5 Division 2AA as follows: Division 2AA—Harbor rules 29AA—Harbor rules The proposed section gives power to the Minister to issue harbor rules by notice in the Gazette in relation to the operation of a relevant harbor. Relevant harbor is defined as— a harbor that is not a port; or a part of a harbor that is not within a port; or a harbor or part of a harbor that is not subject to a port operating agreement; or a harbor that is under the care, control and management of the Minister. The proposed section further sets out the matters that may be addressed in a harbor rule and the process and requirements for the making, varying or revoking of such rules. An offence with a maximum penalty of $10,000 applies for contravention of a harbor rule. 14—Amendment of section 30—Dredging or other similar work This amendment updates an obsolete reference. 15—Amendment of section 30B—Application of Development Act 1993 These amendments update obsolete references. 16—Amendment of section 47—Requirement for boat operator's licence, exemption or permit This amendment deletes the expiation fee applying in relation to the offences in sections 47(3) and (3a) of the Act, consequent on the proposal to set all expiation fees by regulation. 17—Amendment of section 47A—Requirements for operators of hire and drive vessels This amendment deletes the expiation fee applying in relation to the offences in sections 47A(2) and (3) of the Act, consequent on the proposal to set all expiation fees by regulation. 18—Amendment of section 55—Registration This amendment deletes the expiation fee applying in relation to the offence in section 55 of the Act, consequent on the proposal to set all expiation fees by regulation. 19—Amendment of section 65—General requirements This amendment deletes the expiation fee applying in relation to the offence in section 65(2) of the Act, consequent on the proposal to set all expiation fees by regulation. 20—Amendment of section 65A—Requirement to have emergency position indicating radio beacon This amendment deletes the expiation fee applying in relation to the offence in section 65A(2) of the Act, consequent on the proposal to set all expiation fees by regulation. 21—Amendment of section 66—Power to prohibit use etc of unsafe vessel The amendment in subclause (1) is of a technical nature. The amendment in subclause (2) makes it an offence with a maximum penalty of $5,000 applying for an owner or operator of a vessel to fail to comply with an order made under section 66(1). 22—Insertion of section 67A This clause inserts a new section as follows: 67A—Safety direction The proposed section provides power for the Minister, by notice in the Gazette, to issue a safety direction, that imposes restrictions in a specified area within the jurisdiction if the Minister considers it appropriate to ensure— the safety of the public; the protection of vessels or other property; or the safety of users of waters within the specified area or occupiers of land adjoining those waters. The proposed section further sets out the matters that may or must be addressed in a safety direction. It is an offence with a maximum penalty of $10,000 for a person who, without reasonable excuse, fails to comply with a safety direction. 23—Amendment of section 75—Casualties to be reported This amendment deletes the expiation fee applying in relation to the offence in section 75(3) of the Act, consequent on the proposal to set all expiation fees by regulation. 24—Amendment of section 91—Regulations and fee notices This clause amends the regulation making power in the Act to allow for the regulations to set expiation fees not exceeding $5,000 for alleged offences against the Act or the regulations. Debate adjourned on motion of Hon. D.G.E. Hood.